346.74705 

N870t 


UlMIVtKSIl'Y  OH 
„ ILLINOIS  LIBRARY 
4*  UR2ANA-CHAMPAIGN 
STACKS 


THE  LAW  OF  CHAIU^WLE  USES. 

— 

ARGUMENT 

OF 

WM.  CURTIS  NOYES, 


Court  of  Sprats  of  flic  jltatcof  |fclo  Jorlt, 

IN  THE  CASE  OF* 

BEEKMAN,  Administrator,  &c„  against  THE  PEOPLE,  &c.,  and  others, 

IN  BEHALF  OF  THOMAS  BEEKMAN, 


ONE  OF  THE  RESPONDENTS. 


NEW  YORK: 

WM.  C.  BRYANT  & CO.,  PRINTERS,  41  NASSAU  STREET,  COP.  LIBERTY 


1861, 


ERRATA. 


Page  20,  line  3 from  bottom,  for  “ damages  ” read  “ dangers.” 


3G, 

“ 7 “ 

u u 

“ assets  on  the  ” 

“ “ assets  or  the.” 

44, 

“21  “ 

“ “ 

“ Execution  " 

“ “ Executors." 

48, 

“ 5 “ 

top,  “ 

“ Now  here 

“ “ Now  here,” 

54, 

“ 8 “ 

“ “ 

“ £ per  ” 

“ “ £4  per.” 

56, 

“ 11  “ 

u u 

“ jusisdiction  ” 

“ “jurisdiction.” 

“ 

“ 14  “ 

■“  “ 

“ invaled  ” 

“ “ invalid.” 

59, 

“ 6 “ 

“ “ 

“ Fisrt  ” 

“ “ First  ” 

62, 

“ at  the  bottom,  “ 

“ Bridy man's  " 

“ “ Bridgman' s." 

68, 

“ 11  from 

“ “ 

“ distribnte  ” 

“ “ distribute.” 

87, 

“ 12  “ 

“ “ 

“ Edwards  Yarick,” 

u j “ Edwards 
l Y.  Yarick.” 

98, 

“ 10  “ 

u a 

“ Bartholf  ” 

“ “ Barthrop.” 

100, 

“ 5 “ 

top,  “ 

“ Barthorp  ” 

it 

14 


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ARGUMENT 


Mr.  Noyes  said : 

If  your  Honors  please — A brief  reference  to  the  situation  of 
the  parties  litigating  in  this  case,  will  be  all  the  introduction  I 
shall  make  to  the  legal  questions  I propose  to  present  to  the 
Court.  There  is  really,  as  between  the  parties  other  than  the 
State,  no  substantial  difference  of  interest.  The  Bonsors,  if  the 
property  is  to  be  regarded  as  personal  estate,  will  take  the  one  half 
of  it  as  next  of  kin,  and  Mrs.  Barthrop  the  widow,  will  take 
the  other  half,  so  that,  although  there  is  an  apparent  antago- 
nism between  the  representatives  of  Mrs.  Barthrop,  and  the 
Messrs.  Beekrnan  and  the  Bonsors,  in  respect  of  the  farm  that 
was  to  be  provided  for  the  latter  in  this  country,  yet  in  reality, 
the  annihilation  of  that  provision  which  has  been  effected  by  the 
decree  of  the  General  Term,  with  the  other  parts  of  that  decree 
giving  the  property  to  the  next  of  kin,  wa3  a substantial 
‘provision  for  their  benefit.  They  are  all  then,  so  far  as  the 
results  are  concerned,  in  the  same  general  interest,  and  as  I 
c i have  already  intimated  there  is  no  hostility  between  any  of  the 
parties  here,  except  in  reference  to  the  State — the  State  not 
- claiming  any  interest,  as  devisee  or  legatee  or  in  any  other  form 
giving  an  interest,  but  simply  claiming  to  assert  a right  of 
appropriation  or  disposition,  to  carry  out  the  intentions  of  the 
testator. 

h;  A brief  allusion  to  the  statement  I have  affixed  to  the  points 


4 


presented  on  belialf  of  Thomas  Beekman,  whom  I especially  rep- 
resent, will  shew  that  he  and  the  plaintiff  were  justified  not  only 
in  protecting  themselves,  but  in  protecting  their  mother’s  estate  ; 
and  in  having  regard  also  to  the  interests  of  the  Bonsors,  the 
relatives  of  the  testator,  in  contesting  every  provision  of  this 
will,  which  changes  the  ordinary  and  natural  course  of  descent 
of  the  property.  It  seems  the  testator,  very  soon  after  he 
came  here,  was  placed  in  a position  by  which  he  stood  in  loco 
par'entis  to  them,  and  they  gave  him,  without  any  doubt,  the 
obedience  and  respect  due  to  a person  in  that  condition.  And 
the  manner  in  which  that  respect  was  requited  appears  in  this, 
— that  by  his  will  he  gave  them  nothing,  and  by  the  codicil  he 
gave  them  a forest — a small  lot  of  woodland — a place  as  barren 
as  his  affection  towards  them  seems  to  have  been,  and  they  were 
not,  but  other  persons  were  appointed  his  executors.  If,  there- 
fore, the  disposition  which  he  made  of  his  property,  in  disregard 
if  not  in  violation  of  the  relation  in  which  he  stood  to  them, 
was  not  in  all  respects  strictly  legal,  it  was  not  only  their 
right,  but  it  was  their  duty  to  themselves,  to  their  mother,  and 
to  the  Bonsors,  to  set  it  aside.  But  no  apology  is  necessary 
where  there  is  a plain  legal  right ; and  yet  it  is  not  improper 
that  your  Honors  should  see,  that  the  claims  of  duty  entirely 
coincide  with  those  of  legal  right  in  a case  of  this  de- 
scription. 

I shall  first  present  to  the  Court  the  question  growing  out  of 
the  devise  of  a farm  for  the  Bonsors  in  this  country,  and  I will 
read  that  provision.  The  testator  makes  a very  small  provision 
by  his  will  for  the  family  with  which  he  was  so  intimately  con- 
nected. lie  seems  never  to  have  desired  their  presence  in  this 
country  while  he  was  alive  and  in  a condition  to  contribute  to 
their  happiness,  and  it  does  not  appear  that  they  ever  wished  to 
expatriate  themselves.  It  does  seem  that  after  his  decease,  and 


5 


when  he  could  give  them  no  personal  attention,  he  desired  that 
they  should  come  here. 

“ I will  that  my  executors  purchase  a farm  in  trust  for  the 
benefit  of  my  nephews  and  nieces,  children  of  my  sister  Mary 
Bonsor,  of  Nottinghamshire,  in  England,  not  exceeding  six 
thousand  dollars,  as  an  asylum  .” 

Mark  the  phrase  ! A sort  of  semi-public  charitable  institu- 
tion for  his  own  family — the  descendants  of  a sister  ! 

“ And  it  is  my  wish  they  come  and  occupy  the  same,  espe- 
cially my  nephew  Henry,  but  my  executors  must  have  full 
power  over  the  same  for  fifteen  years,  for  the  benefit  of  all  my 
nephews  and  nieces  as  they  think  fit,  and  after  the  fifteen  years 
is  expired,  they  may  sell  the  same  and  apportion  the  avails 
among  them,  or  their  heirs  or  survivors,  as  they  think  just,  and 
if  any  of  my  nephews  and  nieces  cavil  or  dispute  with  the  ar- 
rangements my  executors  make  for  their  mutual  benefit,  I will 
that  they  receive  no  part  thereof.5’ 

So  that  the  executors  were  appointed  a committee  to  manage 
these  unknown  people  when  they  came,  and  if  they  were  not 
satisfied  with  the  means  adopted  for  that  purpose,  they  were 
to  be  cut  off  from  all  participation  in  his  bounty.  Consider 
tins  for  a moment  in  connection  with  the  residuary  clause.  He 
gives,  after  satisfying  all  the  provisions  of  his  will  in  regard  to 
the  dispensary,  the  residue  to  his  executors  in  trust, 

“ to  pay  and  apply  the  same  in  such  sums,  and  at  such 

time  and  times  as  in  their  discretion  they  shall  think  fit  and 
proper,  to  the  treasurer  or  other  officer  having  the  management 
of  the  pecuniary  affairs  of  any  one  or  more  societies  for  the 
support  of  indigent  respectable  persons,  especially  females  and 
orphans,  and  for  the  use  of  said  society  or  societies,  hereby  in- 
tending to  give  to  my  executors  full  discretionary  power  as  to 
the  disposition  of  the  same,  but  so  as  that  the  same  shall  be  ap- 
plied to  objects  of  charity.” 


6 


It  is  not  said  whether  these  societies  shall  be  incorporated,  or 
not  ; but  before  his  relations  can  receive  the  benefit  of  the  six 
thousand  dollars,  they  are  to  occupy  this  domestic  “ asylum,” 
under  the  management  of  his  executors.  And  before  they  can 
reap  one  particle  of  benefit  under  this  residuary  clause,  they  are 
to  become,  in  addition  to  this  unfortunate  aud  unhappy  condition 
in  a private  asylum,  corporate  paupers  ! If  they  should  connect 
themselves  with  any  association  of  that  sort — a refuge  for  pau- 
perism— they  could  receive  its  benefits,  and  not  otherwise. 

If  the  Court  please,  a will  which  contains  such  provisions — 
and  I do  not  say  this  for  the  purpose  of  reflecting  on  the 
memory  of  the  testator — a will  which  contains  such  provisions 
as  this  in  relation  to  the  blood  relations  of  a man,  should  not 
stand,  unless  there  be  some  imperative  rule  of  law  which  re- 
quires it.  And  I ask,  therefore,  in  aid  of  this  family,  which 
has  been  in  part  sustained  by  the  bounty  of  the  administrator 
in  this  case  (as  I know  from  their  correspondence)  during  the 
time  this  litigation  has  been  going  on,  that  this  provision  for  a 
domestic  asylum  be  set  aside  and  the  decree  of  the  General 
Term  be  affirmed,  giving  them,  as  it  will,  a respectable  living 
out  of  the  estate.  I do  not  propose,  however,  to  occupy  any 
considerable  time  on  that  question.  The  first  point  embraces  it. 

I say,  if  the  Court  please,  this  direction  or  devise  in  the  first 
codicil  ( See  Appendix ),  that  his  executors  “ purchase  a farm  in 
trust  ” for  benefit  of  his  nephews  and  nieces,  in  England,  not 
exceeding  $6,000,  •“  as  an  asylum,”  and  that  “they  come  and 
occupy  the  same,  but  my  executors  must  have  full  power  over 
the  same  for  fifteen  years , * * * as  they  think  fit,”  and 

“ after  the  fifteen  years  is  expired,  they  may  sell  the  same  and 
apportion  the  avails  among  them,  or  their  heirs  and  survivors, 
as  they  may  think  just”  was  illegal  and  void. 


7 


First,  it  suspended  the  absolute  power  of  alienation  for  more 
than  two  lives  in  being  at  the  creation  of  the  estate,  there  being 
more  than  that  number  of  nephews  and  nieces.  (Case,fol.  193, 
Judge  MitchelVs  Opinion  / 1 Rev:  St .,  723,  §§  14,  15/  Id.,  773, 
§§1,2/  Id.,  729,  §§  60,  63  / 4 Kent's  Comm.,  282-3  / Hawley 
v.  James,  16  Wend . R.,  61,  120,  127/  Boynton  v.  Hoyt,  l 
Denio  R.,  53.) 

Second,  by  the  devise  the  executors  have  the  power  to 
allot  the  proceeds  of  the  estate,  after  the  expiration  of  the 
fifteen  years,  among  any  one  or  more  of  the  nephews  and 
nieces,  or  their  heirs  or  survivors,  as  they  may  think  just.  (1 
Rev.  St.,  734,  § 99.)  Besides,  the  beneficiaries,  the  nephews 
and  nieces,  being  non-resident  aliens,  the  “ devise  of  any  interest 
in  real  property  ” to  them,  was  void  by  statute  (2  Rev.  St., 
57,  §4/  2 Kent's  Comm.,  62),  and  at  the  time  this  will  was 
made,  the  Revised  Statutes  were  imperative.  I am  aware  there 
have  been  changes  made  since  that  time. 

If,  as  contended  in  their  behalf  in  the  Court  below,  “ the 
bequest  does  not  come  within  any  of  the  classes  of  express 
trusts  named  in  the  statute,”  then  the  devise  was  also  void,  as 
attempting  to  create  an  unauthorized  trust.  (1  Rev.  St.,  128,  § 
55  / Ring  v.  McCoun,  6 Seld.,  268,  271.)  It  is  not  a trust  to 
apply  the  rents  and  profits  absolutely  to  certain  persons. 

“ It  is  my  wish  they  come  and  occupy  the  same,  especially 
my  nephew  Henry,  but  my  executors  must  have  full  power 
over  the  same  for  fifteen  years.” 

There  is  no  obligation  on  the  executors  to  apply  the  rents  and 
profits.  And  then,  if  they  cavil,  they  are  to  be  cut  off. 

I say  in  the  next  place  ; nor  could  the  title  vest  in  them  under 
§§  47,  48  and  49,  inasmuch  as  the  devise  of  “any  interest  ” to 
them  was  forbidden  by  the  statute  cited,  and  the  trust  was 
also  void. 


8 


Again,  equity  would  not  raise  a resulting  trust  in  their  favor, 
in  fraud  of  the  rights  of  the  State,  or  the  law  of  the  laud  ; and, 
clearly,  an  estate  or  interest  would  not  vest  in  them  under  these 
sections,  in  fraud  of  the  statute  cited.  ( Leggett  v.  Dubois , 5 
Paige  R.,  114.  Ilubbard  v.  Goodwin , 3 Leigh  R.,  492.  2 

lientfs  Comm.,  62,  note.)  That  devise  could  not  he  made  to  an 
alien.  A resulting  trust  never  arises  in  favor  of  an  alien.  It 
never  arises  in  any  matter  involving  an  illegality  ; and  in  this 
case,  therefore,  there  would  not  be  a resulting  trust. 

My  next  proposition  is,  that  the  devise  and  bequest  in  the 
first  codicil  (See  Appendix,)  for  “a  public  dispensary  as  in 
Hew  York,  on  a similar  plan,  for  indigent  persons,  both  sick 
and  lame,  to  be  attended  by  a physician  elected  to  the  establish - 
ment,  at  their  own  homes,  and  also  daily  at  the  dispensary 
* * * and  funds  enough  to  carry  on  the  building , 

and  yearly  expenses/’  was  illegal  and  void ; because  it  seeks 
to  create  a trust  in  lands  and  personal  property  contrary  to  the 
Eevised  Statutes. 

If  valid,  the  direction  would  be  imperative,  and  would  re- 
quire the  purchase  of  land,  and  the  erection  of  buildings  upon 
it  for  a dispensary.  It  demands  an  “ establishment,”  which  is 
something  “settled  firmly,”  or  “instituted  for  public  or  private 
uses,”  and  also  a “ building  ” ; both  involving  a substantial  and 
permanent  edifice,  or  structure  erected  on  land. 

“A  dispensary  as  in  Hew  York — ” 

Where  they  are  public  edifices,  used  as  dispensaries, 

“ — on  a similar  plan,  for  indigent  persons,  both  sick  and  lame, 
to  be  attended  by  a physician  elected  to  the  establishment, 
at  their  own  homes,  and  also  daily  at  the  dispensary ; my 
executors  to  consult  judicious  men  in  Albany  respecting  the 
same,  and  funds  enough  to  carry  on  the  building  and  }7early 
expenses :” 


9 


The  association  of  these  terms,  it  seems  to  me,  shews  that  the 
testator  contemplated  the  carrying  on  of  the  dispensary  after 
the  edifice,  to  be  used  for  that  purpose,  was  erected.  Now 
Boyle  .says  (page  90)  that— 

“Where  money  is  bequeathed  for  the  purpose  either  of 
4 erecting,’  or  { building  ’ an  infirmary  or  school,  or  other  char- 
itable institution,  without  saying  upon  what  lands,  the  Courts 
have,  for  some  time  past,  contrary  to  the  construction  put  upon 
the  words  in  former  cases,  held  that  prima  facie  the  testator 
must  be  taken  to  mean  that  land  must  be  bought,  * * * It 

matters  not,  therefore,  whether  a bequest  for  that  purpose  stands 
alone,  or  is  accompanied  with  a devise  of,  or  express  directions 
to  purchase  land  to  be  appropriated  for  the  building;  such  a 
bequest  being,  in  any  case,  equally  invalid.” 

I have  referred  to  several  cases  on  this  subject.  (1  Jarman 
on  Wills , 209-10 ; Ally.  Gen.  vs.  Weymouth , Ambler , 20 ; 
Same  vs.  Graves , Id. , 155  ; Same  vs.  Tyndall , Id.,  614  ; Same 
vs.  Caldwell , Id.,  637 ; Gravenor  vs.  Ilcdlam , Id.,  643 ; Chap- 
man vs.  Brown , 6 Vesey,  404 ; Atty.  Gen.  vs.  Davies,  9 Id., 
514  ; Frye  vs.  Corp.  of  Gloucester,  14  Beav.,  173,  196;  Atty. 
Gen . vs.  Hull,  9 Hare,  647 ; S.  C.  15,  Law  and  Eg.  B.,  182 ; 
Lang  staff  vs.  Dennison,  1 Drewry,  28;  S.  C.  11  Law  and  Eg. 
B.,  267 ; In  re  Chancery,  16  Beav.,  295  ; Kane  vs.  Gotti  24 
Wend.,  641  ; Bogert  vs.  Hertell,  4 Hill,  492;  Stagg  vs.  Jack- 
son,  1 Comst.  212.)  I do  not  mean  to  go  into  them  at  all.  I 
will  only  refer  to  one  or  two. 

In  the  case  of  the  Attorney  General  vs.  Davies,  (9  Vesey, 
544),  Loed  Eldon  says, 

“ Whatever  were  the  decisions  formerly — ” 

And  he  is  speaking  more  than  half  a century  ago, 

“ when  charity  in  this  Court  received  more  than  fair  consider- 
ation, it  is  now  clearly  established,  and  1 am  glad  it  has  come 
2 


10 


~back  to  some  common  sense , that  unless  the  testator  distinct^ 
points  to  some  land  already  in  mortmain,  the  Court  will  under- 
stand him  to  mean,  that  an  interest  in  land  is  to  be  purchased, 
and  the  gift  is  not  good.” 

In  the  case  of  the  Attorney  General  vs.  Hull,  (9  Hare , 617, 
S.  G.  15  Laio  and  Equity , 18?,)  there  was  a bequest  of  £100 
“ towards  establishing  a school  near  the  Angel  Inn,  at  Eltham,” 
words  not  so  strong  as  those  here,  because  nothing  was  said 
about  the  expenses  of  carrying  it  on  ; simply  the  words  towards 
establishing ;”  implying,  it  might  be,  in  aid  of  one  already 
established.  And  yet  the  Court  said  it  required  something  in 
perpetuity  involving  the  purchase  of  land,  and  therefore  was 
void. 

In  Langsiaff  vs.  Dennison , (1  Drewry , 28,  S.  C.  11  Law  and 
Equity , 267,)  it  was  a gift  of  the  residue.  The  simple  words 
were,  “ to  establish  a school.”  and  it  was  held  void. 

In  re  Clancy , (16  Beavan , 295,)  was  the  case  of  a bequest  of 
£100  to  be  applied  by  the  trustees  for  t!io  establishment  of  a 
charity  school  for  poor  Catholic  children  in  Reading;  and  that 
was  held  to  be  void  for  the  same  reason,  upon  the  ground  that 
it  required  the  purchase  of  property  not  in  mortmain,  and 
hence  was  void. 

But  even  if  the  bequest  would  be  satisfied  by  hiring  or  leas- 
ing a house  and  lands,  still  the  rule  would  be  the  same.  My 
learned  friend  seemed  to  think  that  that  would  authorize  a dis- 
tinction, but  this  cannot  be,  as  it  must  be  a hiring  or  leasing  con- 
tinuously or  in  perpetuity,  so  as  to  be  as  unlimited  in  duration  as 
the  dispensary  itself.  It  certainly  would  not  be  an  answer  to 
say,  you  can  hire  for  a year,  and  then  for  another  year,  and  so  on. 
It  presupposes  the  necessity  of  a continuous  possession  of  real 
estate,  commensurate  with  the  duration  of  the  trust,  and  High- 
more  on  Mortmain  {page  226)  contains  the  principle  that  even 
such  a devise  is  void. 


11 


I say,  in  addition,  then,  under  this  proposition,  the  trust 
is  in  contravention  of  the  Revised  Statutes  in  regard  to  uses 
and  trusts  inasmuch  as,  in  order  to  carry  the  testator’s  inten- 
tion into  effect,  it  requires  the  creation  of  some  organized  legal 
existence,  capable  of  indefinite  duration,  to  receive  and  hold 
the  title  to  the  land  and  buildings  necessary  for  the  dispensary, 
and  to  the  funds  or  money,  with  which  to  pay  the.  salary  or 
compensation  to  the  “elected,”  “physician  of  the  establish- 
ment,” and  the  incidental  expenses,  and  to  disburse  the  same 
from  time  to  time,  in  perpetuity.  Row,  if  such  trustees  have 
not  been  created  by  the  will,  or  if  the  authority,  in  express 
terms,  has  not  been  conferred  upon  this  Court,  or  upon  some 
other  tribunal  or  body  authorized  to  create  them,  then  they 
must  be  constituted  in  virtue  of  some  inherent  power  in  the 
Court,  or  in  some  other  body,  to  do  the  same  thing;  and  I say 
this  can  only  be  done  by  creating  a corporation,  or  by  the  ap- 
pointment of  trustees  by  a Court  or  some  other  tribunal,  or  a 
legislative  body,  authorized  ~by  law  to  appoint  them. 

Row  I need  not  say  it  is  no  part  of  the  power  of  the  Court 
of  Chancery  to  appoint  trustees  de  novo  of  anything.  It  may 
continue  trustees  that  have  been  appointed  by  some  legal 
means ; but  a bill  in  a Court  of  Equity  to  appoint  trustees  of  a 
fund  which  never  had  trustees — has  no  existence.  It  is,  in 
effect,  the  creation  of  a corporation.  Trustees,  unlimited  in 
duration,  or  capable  of  unlimited  existence  by  means  of  a new 
creation  as  often  as  there  is  a vacancy,  are  in  effect  a corporation. 
They  have  a continuous  existence.  They  never  die.  And  the 
Court  of  Chancery  has  no  power,  inherently  or  otherwise,  to 
appoint  trustees  to  anything,  where  trustees  have  never  been 
appointed  before. 

I say  in  the  next  place,  a corporation  to  execute  the  trust 
could  only  be  created  by  the  Legislature.  The  Court  of 
Chancery  as  such,  in  the  exercise  of  its  ordinary  jurisdfe- 


12 


tion,  lias  no  power  to  appoint  trustees  where  the  testator  lias 
not  appointed  them,  or  made  provision  for  their  appoint- 
ment ; nor  to  make  any  illegal  trust,  though  charitable  in  its 
character,  valid,  by  appointing  trustees  for  it.  And  I might  use 
a term  less  significant  than  “ illegal.”  The  Court  of  Chancery 
has  no  power  to  make  a trust  which  cannot  exist,  or  which  was 
invalid  aside  from  any  illegality,  valid  by  the  appointment  of 
trustees ; such  trustees  being  essential  to  the  executions  of  the 
trust,  and  there  having  been  no  provision  by  the  terms  of  the 
trust  for  the  appointment  of  trustees. 

I refer  to  some  authorities  on  this  subject.  Rill  on  Trustees, 
(j pages  176,  212,)  says  : 

“ A power  to  appoint  new  trustees  can  only  be  created  by 
the  author  of  the  trust  himself.  The  Court  cannot  in  general 
delegate  to  others,  the  authority  which  it  assumes  in  such  cases  ; 
and  trustees  appointed  or  substituted  by  the  Court,  will  not 
usually  be  authorized  to  appoint  others  in  their  stead.” 

Now,  the  only  way  in  which  the  scheme  of  a dispensary  could 
be  carried  out,  which  Judge  Mason  as  referee,  by  the  judgment 
of  the  Special  Term  was  authorized  to  frame,  was  by  making  trus- 
tees and  providing  the  terms  of  an  instrument  necessary  to  the 
devolution  of  the  trust  from  time  to  time,  as  in  the  scheme  to  be 
found  in  Tudor  on  the  Charitable  Trust  Act , p.  214,  where 
twenty-four  trustees  were  appointed  to  carry  on  the  Dispensary, 
with  power  to  fill  vacancies. 

Ilill  then  adds : 

“ However,  there  seems  to  bean  exception  in  cases  of  charity. 
For  in  charitable  trusts,  equity  will  usually  appoint  new  trustees 
to  fill  the  vacancies  actually  created,  but  it  will  also  sanction 
the  insertion  of  a direction  in  the  scheme,  that  regular  appoint- 
ments may  be  made  by  the  proper  parties  from  time  to  time,  as 
often  as  occasion  may  require.” 


13 


Not  that  it  will  make  new  trustees,  or  trustees  where  there 
were  none  before  ; but  it  will  make  provision  in  the  scheme  to 
continue  the  appointment  of  trustees,  the  power  having  origin- 
ated in  the  act  dedicating  the  charity,  or  creating  the  charitable 
use. 

He  says  again  : 

“ Whenever  circumstances  render  it  necessary  or  desirable  to 
appoint  new  trustees,  the  Court  of  Chancery  in  exercise  of  its 
inherent  jurisdiction,  will  interpose  upon  a proper  application, 
and  make  the  apointment.  The  jurisdiction  exists,  and  will  be 
exercised,  whether  the  instrument  creating  the  trust  does  or 
does  not  contain  a power  to  appoint  new  trustees.55 

Hence,  it  is  entirely  clear,  that  the  jurisdiction  of  the  Court 
proceeds  upon  the  basis  of  the  appointment  of  a trustee,  by  the 
act  creating  the  charitable  use.  And  then  he  says  : 

“ All  the  persons  beneficially  interested,  must  be  made  parties 
to  the  suit  for  the  appointment  of  a new  trustee.55 

I will  now  consider  the  reference  to  Boyle  on  Charities  (page 
23 T).  He  says  : 

“ It  is  a point  perfectly  well  settled,  that  where  money  is 
given  to  charity  generally  and  indefinitely,  without  trustees  or 
objects  selected,  the  king,  as  parens  patriae,  is  the  constitutional 
trustee.  On  the  other  hand,  it  is  equally  clear,  as  has  been 
stated  under  the  last  chapter,  that  in  order  to  give  jurisdiction 
to  the  Court  of  Chancery,  it  is  absolutely  necessary  that  there 
should  have  been  an  appointment,  or  at  least  an  intended  ap- 
pointment of  trustees.55 


I have  referred  also  to  Moggridge  vs.  Thachwell  (7  Vesey,  83, 
86),  which  is  a leading  case  on  the  subject.  Lord  Eldon  says : 


14 


“ The  general  principle  most  reconcileable  with  the  cases 
was,  that  where  there  is  a general  indefinite  purpose,  not  fixing 
itself  upon  any  object,  the  disposition  is  in  the  king  by  sign 
manual ; but  where  the  execution  is  to  be  by  a trustee,  with 
general  or  some  objects  pointed  out,  then  the  Court  will  take  the 
administration  of  the  trust.” 

Lord  Eldon,  in  the  liberality  with  which  he  regards  the  rule, 
only  maintaining  that  the  Court  of  Chancery  has  jurisdiction 
where  a trustee  has  been  appointed. 

In  another  case,  which  I believe  has  not  been  referred  to  be- 
fore, Paice  vs.  The  Archbishop  of  Canterbury,  (14  Vesey,  372,) 
Lord  Eldon,  purporting  to  follow  this  distinction,  says  : 

“ Where  the  bequest  is  to  trustees  for  charitable  purposes, 
the  disposition  must  be  by  scheme  before  the  master;  but  where 
the  object  is  charity,  without  a trust  interposed,  it  must  be  by 
sign  manual.” 

Here,  where  there  were  no  trustees,  the  Court  below  com- 
pelled the  adoption  of  a scheme.  Boyle,  (at  page  241)  in  sum- 
ming up  the  whole  rule,  says  : 

“ It  may  therefore  be  considered,  that  however  vague  and 
indefinite  the  gift  may  be,  provided  it  is  strictly  charitable  in 
its  nature,  and  not  mixed  up  with  general  purposes,  the  dis- 
position will  be  carried  into  effect  cy-pues,  either  by  the  Court 
or  the  Crown,  according  as  there  has  or  has  not  been  an  inter- 
position of  trustees.” 

I will  ask  your  Honors  to  note  some  additional  authorities  in 
our  own  State,  as  to  the  question  of  jurisdiction  to  appoint  trus- 
tees under  our  statute,  where  the  right  of  the  Court  of  Chancery 
to  appoint  trustees,  independent  of  the  statute,  and  as'  substi- 
tutes for  executors,  was  considered  by  the  Chancellor.  Matter 
of  Stevenson,  (3  Paige,  420) ; Matter  of  Van  Wyck,  (1  Barb. 
Ch.  P.:  5G5). 


15 


I say,  in  the  next  place,  the  testator  not  having  appointed 
trustees  to  build  the  dispensary,  or  to  administer  the  funds 
necessary  to  establish,  it  and  carry  it  on,  the  devise  and  be- 
quest, without  the  exercise  of  the  royal  prerogative  by  sign 
manual,  is  as  illegal  and  invalid,  as  if  it  had  been  made  to  the 
unascertained  and  unascertain  able  persons  who  might  be  re- 
lieved at  the  dispensary,  or  to  the  unknown  and  undefined 
locality  where  it  may  be  erected,  or  to  an  unincorporated 
society  or  association.  If  to  the  latter  specifically,  or  by  name, 
where  there  was  no  actual  incorporation,  it  would  be  void,  and 
the  property  would  go  to  the  heirs  and  next  of  kin.  I cite 
Owens  vs.  Meth.  Ep.  Church , (14  1ST.  Y.  7?.,  380,)  and  I under- 
stand the  doctrine  of  that  case  to  be,  that  where  there  is  no 
trustee  competent  to  take  at  the  creation  of  the  trust,  the  Court  of 
Chancery  lias  no  jurisdiction  to  uphold  a bequest,  even  for 
charitable  or  religious  purposes, 

But  even  if  the  Court  of  Chancery  could  appoint  trustees,  it 
has  no  power  to  do  so,  also,  because  the  trust  is  in  contraven- 
tion of  the  Revised  Statutes  as  to  uses  and  trusts.  And  the 
creation  and  administration  of  such  trust  is  forbidden  in  the 
plainest  and  most  general  language  ; not  only  by  private  parties, 
but  by  the  judicial  tribunals. 

My  first  proposition  under  that  point  is  that  the  Statute  is 
imperative;  and  the  Court  will  allow  me  to  call  attention  to 
its  language : (2  R.  A.,  727,  § 45). 

“Uses  and  trusts,  except  as  authorized  and  modified  in  this 
article,  are  abolished  ; — ” 

Row,  a trust  for  a charity  was  originally  called  a “ use,”  and 
this  prevailed  for  a long  time  ; the  phrase,  “ charitable  uses,” 
being,  especially  after  the  Statute  of  Elizabeth,  well  known  to 
the  law. 


16 


“ — and  every  estate  and  interest  in  lands  shall  be  deemed  a 
legal  right , cognizable  as  such  in  the  courts  of  law,  except 
where  otherwise  provided  in  this  chapter.” 

Now,  I submit  that  there  cannot  be  language  more  general, 
more  forcible,  or  more  direct  in  its  character  for  the  general 
abolition  of  trusts  and  uses.  Here  comes  the  46th  section. 

“Every  estate  which  is  now  held  as  an  use , executed  under 
any  former  statute  of  this  State,  is  confirmed  as  a legal  estate.” 

Then,  we  have  the  55th  section,  which  does  not  embrace  a 
trust  for  a charity,  except  in  a limited  way.  That  authorizes 
a trust : 

“ To  receive  the  rents  and  profits  of  lands,  and  apply  them 
to  the  use  of  any  person  during  the  life  of  such  person,  or  for 
any  shorter  term,  subject  to  the  rules  prescribed  in  the  first 
article  of  this  title. 

To  receive  the  rents  and  profits  of  land,  and  to  accumulate 
the  same  for  the  purposes  and  within  the  limits  prescribed  in 
the  first  article  of  this  title.” 

which  necessarily  excludes  all  trusts  and  all  accumulations  for 
general  purposes,  such  as  in  the  English  Law  are  regarded  as 
for  a charitable  purpose. 

IIow,  then,  is  this  general,  forcible  language  to  be  avoided  ? 
Can  it  be  avoided  ? I submit,  it  can  only  be  avoided  by  im- 
plying an  exception,  defeating  its  plain  intention  and  words. 
There  is  no  other  way.  The  Legislature  has  not  declared  that 
any  exception  shall  be  made,  nor  said  anything  implying  it.  I 
will  refer  the  Court  to  the  case  of  Williams  v.  Williams , (4  Sel- 
den , 525,  552)  where  this  right  to  interpolate  an  exception  has 
been  supposed  by  some  to  be  judicially  established.  With  the 
judgment  in  that  case  I am  entirely  satisfied — all  of  us  will 
agree  that  it  was  right.  It  is  in  the  reasoning  of  the  Court  that 


17 


authority  is  said  to  be  found,  justifying  the  implication  hold- 
ing that  trusts  for-  charity  are  exempts  from  the  general  sta- 
tute rule  as  to  trusts.  1 contend,  however,  that  that  case  ought 
not  to  be  regarded  as  controlling,  because  it  was  decided,  in 
fact,  against  a majority  of  the  opinions  of  all  the  Judges  who 
heard  it  in  the  various  Courts  to  which  it  was  presented,  and 
has  since  been  questioned  in  the  Court  of  last  resort  and  else- 
where. 

Judge  Denio. — I do  not  see,  Mr.  Noyes,  that  that  case  has 
anything  to  do  with  the  statute  you  were  referring  to.  It  had 
reference  only  to  personal  property,  and  the  statute  covers  real 
estate  only. 

Mr.  Notes. — I was  going  to  point  that  out.  I said,  it  was 
supposed  by  some  that  it  had  something  to  do  with  this  ques- 
tion. 

Chief  Justice  Comstock. — Then,  it  has  nothing  to  do  with 
this  case. 

Mr.  Noyes. — Then  I shall  not  discuss  it  now;  the  will  in 
that  case  was  of  personal  property  only.  I shall  refer  to  it  in 
another  point  of  the  argument.  I was,  about,  however,  to  ob- 
serve that  the  case  of  Williams  vs.  Williams  is  sustainable  upon 
other  grounds.  There  the  bequest  of  $6,000  to  the  trustees  of 
the  Presbyterian  Church  of  Huntingdon  wTas  clearly  valid,  be- 
cause the  Church  could  take  by  the  statute  under  which  it 
was  incorporated.  And  so  the  other  bequest  of  $6,000  to 
the  trustees,  as  a fund  to  educate  poor  children  in  the  Aca- 
demy, in  the  village  of  Huntingdon,  wTas  clearly  sustainable  as 
a trust  to  the  Academy,  which  was  an  incorporated  institution. 
I cite  in  connection  with  this  the  case  of  Shepard  vs.  McEvers , 
(4  Johns  Ch.  if.  136),  decided  in  1819,  as  showing  that  where  a 
3 


18 


trust  is  created  for  the  benefit  of  a third  party,  even  without 
his  knowledge,  he  may  adopt  the  trust  and  enforce  it.  Within 
this  rule,  the  Academy  could  have  compelled  the  performance 
of  this  .trust  in  its  own  favor. 

Let  me  revert,  for  an  instant,  to  the  case  of  Williams  vs. 
Williams , and  the  opinion  of  Justice  Strong  in  regard  to  it, 
in  Wilson  vs.  Lynt , (30  Barb .,  124).  He  says  {page  130) : 

“ It  has  been  decided,  however,  by  our  Court  of  Appeals  that 
the  general  and  strong  language  of  the  Revised  Statutes  against 
the  perpetual  suspension  of  the  absolute  ownership  of  personal 
property,  is  inapplicable  to  religious  societies,  and  that  as  to 
them,  such  suspension  may  endure  for  all  time  to  come.  In 
differing  from  that  high  tribunal  in  that  particular,  as  I do,  in 
toto  co&lo , I may  be  exempted  from  the  charge  of  presumption, 
by  the  history  of  the  case  just  cited.  The  action  was  brought 
to  annul  two  legacies,  one  to  a religious  society , and  the  other 
to  certain  trustees , for  a charitable  purpose,  of  S3, 000  each,  to 
accumulate  by  the  addition  of  half  of  the  income,  until  each 
should  amount  to  $10,C00,.to  be  held  in  perpetuity  for  purposes 
which  permanently  suspended  the  absolute  ownership.  In  its 
different  stages,  it  was  heard  by  eleven  judges.  Of  these, 
Judge  Buggies,  (who  had,  as  vice-chancellor,  affirmed  the 
validity  of  these  bequests)  and  Judge  Henio,  of  the  Court  of 
Appeals,  and  Justices  Mason,  Morse  and  Willard,  of  the  Su- 
preme Court,  (but  sitting  in  the  Court  of  Appeals)  sustained 
the  legacies,  while  they  were  condemned  as  null  and  void  by 
Judges  Gardiner  and  Johnson,  of  the  Court  of  Appeals,  and 
Justices  Taggart,  (sitting  in  that  Court)  McCoun,  Barculo  and 
Brown  of  the  Supreme  Court.  So  that  the  judgment  which 
was  eventually  pronounced  was  actually  against  the  opinions  of 
a majority  of  the  Judges.  Possibly,  that  may  lead  to  a recon- 
sideration of  the  questions  involved,  and  a different  determina- 
tion by  that  high  tribunal  ; especially,  as  it  has  sometimes 
overruled  its  own  decisions.  (See  Brewster  vs.  Silence , 4 Seld., 
209,  expressly  overruling  Brown  vs.  Curtiss , 2 Cornst .,  225, 
and  Dunham  vs.  Manrow , Id.  533,  and  Robertson  vs.  BuV 
lions , 1 Kern , 243,  and  an  unreported  case,  relative  to  a devise 


19 


for  charitable  purposes,  to  an  unincorporated  association,  over- 
ruling some  points  in  Williams  vs.  Williams .)” 

The  case  last  referred  to  by  the  learned  Judge  is  that  of 
Oicens  vs.  The  Miss.  Soc.  of  the  Meth.  Tipis-.  Church , (14  Ah 
Y.  if.,  380,  411)  where  Judge  Selden  delivered  an  opinion, 
denying  the  existence  in  this  State  of  the  English  law  of  chari- 
table uses.  In  this  opinion,  Judges  A.  S.  Johnson,  T.  A.  John- 
son, Hubbard  and  Wright  concurred;  Judges  Denio  and  Com- 
stock decided  the  case  on  the  ground  that  the  object  of  the 
charity  was  not  sufficiently  definite,  and  Judge  Mitchell  dis- 
sented entirely.  Judge  Selden  «had  previously  held  a similar 
trust  illegal  in  Chittenden  vs.  Chittenden , (1  American  Law 
Register , 543.) 

I contend,  further,  that  upon  principle  the  point  may  be 
reconsidered.  ( Ram  on  Legal  Judgment , Ch.  14,  §1,jA  112; 
Ld.  § 3,  pp.  121-2-3  ; Ld.  § 4,  pp.  125-6  ; Id.  p.  161 : Lug- 
den  on  the  Laws  of  Judgment  on  the  House  of  Lords,  p.  21, 
'§§  18  to  26;  Miller  vs.  Emans , 19  N.  Y.  R .,  384,  overruling 
Pelletreau  vs.  Jackson,  11  Wend.,  110,  and  Jackson  vs.  Wal- 
dron, in  the  Court  of  Errors,  being  the  same  case,  13  Wend.t 
178,  decided  there  in  1834 ; and  Edwards  vs.  Yarick,  also  in 
the  Court  of  Errors,  decided  in  1848  by  a vote  of  15  to  1.)  In 
Plattner  vs.  Sherwood,  (6  Johns.  Ch.  R.,  118,)  Chancellor 
Ivent  said,  in  reference  to  reconsidering  a question  once  ad- 
judged : 

“This  same  point  arose,  incidentally,  in  respect  to  this  same 
conviction,  in  the  case  of  Troup  vs.  Wood,  (4  Johns.  Ch.  R., 
228,)  and  I was  there  induced  to  think,  upon  the  authority  of 
Lord  Coke,  that  every  person  attainted  of  felony  was  accounted 
in  law,  civiliter  mortuus.  It  was  not  a necessary  or  very  ma- 
terial point  in  that  case,  and  I did  not  pursue  the  subject  to 
the  extent  I should  have  done,  if  it  had  been  then,  as  it  is  now, 
the  direct  and  material  point  in  issue.  I have,  likewise,  since 


20 


had  the  benefit  of  a full  and  able  discussion,  and  of  a diligent 
and  accurate  research,  particularly  on  the  part  of  the  plaintiff, 
respecting  this  very  unusual  question  of  law.” 

This  great  Judge,  accordingly,  reversed  his  previous  opinion, 
and  his  example  is  commended  to  the  imitation  of  this  Court, 
if  the  case  of  Williams  vs.  Williams  shall  be  deemed  in  any 
way  to  come  in  conflict  with  the  principles  contended  for  on 
this  occasion. 

Judge  Mason. — I would  remark  here,  that  I was  on  the  Bench 
when  Williams  vs.  Williams  was  heard.  The  case  was  very 
ably  argued  and  no  case  was  ever  decided  with  further  research. 
I do  not  think  it  would  be  policy  for  this  Court  to  review  and 
reverse  a former  decision,  when  founded  on  so  thorough  an  ex- 
amination of  the  law  as  the  one  referred  to. 

Mr.  Noyes. — I leave  the  matter  entirely  to  the  consideration 
of  the  Court,  to  be  dealt  with  as  it  shall  think  fit,  and  will  pro- 
ceed with  my  next  proposition,  that  implying  such  an  excep- 
tion is  a departure  from  several  well  established  principles  in 
the  interpretation  of  statutes,  such  as,  “that  when  the  intent  is 
plain  and  the  words  unambiguous,  the  Court  is  bound  to  give 
effect  to  them,  vdiatever  may  be  its  opinion  of  the  wisdom  or 
policy  of  the  law,”  (Broomis  Maxims , 246-S  / 2 Dwarris  on 
Statutes , 689-90  / The  Sussex  Peerage  Case , 8 Jurist , 795  * 
S.  C.  11  Clark  <&  Fin , 143,)  I shall  also  refer  to  a very  clear 
authority  in  the  language  of  Chief  Justice  Tindal,  in  the 
case  last  cited.  Next,  “that  a remedial  act  is  to  be  benefi- 
cially construed,  so  as  to  meet  the  end  in  view,”  which  here 
was  to  invalidate  all  uses  and  trusts,  not  especially  authorized. 
I do  not  deduce  that  reasoning  from  the  state  of  public  affairs, 
or  the  damages  growing  out  of  such  trusts.  It  seems  to  me  it 
arises  from  the  language  of  the  Act  and  its  general  sweeping 
terms.  It  is  enough  for  me  to  say  that  the  Legislature  has  not 


21 


authorized  such  a trust,  and  the  language  employed  seems 
necessarily  to  exclude  it.  Chief  Justice  Tindal  says,  in  the 
case  to  which  I have  referred,  (8  Jurist , at  page  795,) 

“ The  only  rule  for  the  construction  of  Acts  of  Parliament  is, 
that  they  should  be  construed  according  to  the  intent  of  the 
Parliament  which  passed  the  Act.  If  the  words  of  the  statute 
are  in  themselves  precise  and  unambiguous,  then  no  more  can 
be  necessary  than  to  expound  the  words  in  their  natural  and 
ordinary  sense.  The  words  themselves  alone  do,  in  such  case, 
lest  declare  the  intention  of  the  law-giver .” 

And  I submit  that  the  modern  and  safer  rule  is,  that  when 
the  words  of  a statute  are  clear  and  unambiguous,  an  exception 
contrary  to  the  language  cannot  be  implied.  ( Sedgwick  on 
Stat.  and  Const.  Law, .297  to  311.)  The  opinion  of  the  Supreme 
Court  of  the  United  States  is  to  that  effect,  “that  the  judiciary 
has  no  right  to  make  exceptions,  or  insert  qualifications,  how- 
ever abstract  justice  or  the  justice  of  the  particular  case  may 
seem  to  require  it.”  (. Priest-man , vs.  If.  S.,  4 Dallas,  30,  Note  per 
Chace,  J) 

I submit,  too,  that  the  weight  of  reasoning  and  judicial  author- 
ity upon  the  statute,  is  decidedly  against  implying  such  an 
exception.  The  principal  reason  for  implying  it  is,  that  char- 
itable uses  are  not  deemed  within  the  common  law  and  the 
statute  of  perpetuities  in  England.  That  is  the  reasoning  in 
Williams  vs.  Williams.  But  as  far  as  the  common  law  was 
concerned,  the  two  systems  could  and  did  exist  together ; that 
of  charitable  uses,  at  the  common  law  and  under  the  statute 
of  Elizabeth,  as  an  exception  to  the  general  rule  of  the  common 
law,  forbidding  perpetuities;  the  statute  itself  operating  to 
create  the  exception  to  tire  rule,  and  sustaining  it  in  respect 
both  of  real  and  personal  property,  as  1 shall  show  by  and 
by.  In  other  words,  the  common  and  statute  law  of  England, 
while  it  forbade  perpetuities  as  a general  rule,  tolerated  and 


regulated  them  as  to  charitable  uses ; perpetuity  being  most 
frequently  the  essence  of  donations  for  such  purposes.  But 
there  was  no  such  general  statute  as  that  now  under  consid- 
eration, abolishing  all  uses  and  trusts  except  those  which  do 
not  embrace  gifts  to  charities  ; and  there  never  has  been  such 
an  act  to  my  knowledge  passed  in  England.  Besides,  the  Thel- 
lusson  Act  (39  and  40  Geo.  III.,  Cap.  98)  does  not  contain 
any  negative  words,  nor  anything  declaring  that  all  trusts  or 
accumulations,  other  than  such  as  were  authorized  by  it,  were 
abolished.  It  was  evidently  intended  only  to  apply  to  the  ex- 
isting state  of  the  laws;  and  not  to  repeal  the  common  law  as 
to  charities,  or  the  statute  of  43d  Elizabeth,  so  far  as  it  was  un- 
affected by  the  former.  It  was  special  legislation  growing 
out  of  the  evils  of  that  particular  case,  leaving  the  statute  of 
Elizabeth,  that  of  George  II.  as  to  Mortmain,  and  as  much  of 
Magna  Cliarta  as  related  to  it,  untouched.  Our  own  statute  is 
entirely  different.  Me  have  no  statute  declaring  what  are 
superstitions  or  charitable  uses  and  what  not — -no  statutes  of 
Mortmain.  There  is  nothing  therefore  to  sustain  them.  Does 
not  the  statute  of  uses  and  trusts,  in  its  plain  and  general  terms 
abolish  the  statute  of  43  Elizabeth  ? Besides  this,  the  weight 
of  judicial  authority  in  this  State  is  against  the  implication  of 
such  an  exception,  and  in  favor  of  giving  the  words  of  the 
statute  their  ordinary  signification.  The  cases  in  favor  of  the 
exception  are,  KinisTcen  vs.  'Lutheran  Church , (1  Sandf.  Ch. 
R 439,)  Shotwell  vs.  Mott , (2  Id.  46,  52,)  and  Williams  vs. 
Williams , (4 .Seld,,  551.)  Those  against  it  are,  Ayres  vs.  Meth. 
Ejpis.  Church , (3  Sandf  \ S.  C.  R.}  351,  371,)  Yates  vs.  Yates , 
(9  Barbour , 324,  340,)  Morgan  vs.  Master-ton , (4  Sandf.  S.C.R 
440,)  Yoorhies  vs.  Presbyterian  Church , (17  Barbour , 101-5,) 
McCaughal  vs.  Ryan , (27  Id.  376,)  Wilson  vs.  Lynt,  (30  Id., 
124.)  I have  arranged  these  cases  in  the  order  in  which  they 
arose.  It  is  enough  for  me  to  say  that  a majority  of  all  the 


23 


Judges  who  have  heard  this  question  discussed,  have  been 
against  implying  the  exception.  I will  not  occupy  the  time  of 
the  Court  writh  arranging  or  classifying  those  cases.  I ought 
perhaps  to  refer  to  the  opinion  in  one  of  them  decided  by 
the  Superior  Court  of  this  City.  ( Ayres  vs.  The  Methodist 
Church , 3 Sand/.  8.  C.  7?.,  at  page  371.)  This  declaration  by 
one  of  the  Revisers,  Judge  Dues,  is  quite  important. 

“It  is  said  that  the  revisers,  in  their  notes,  make  no  reference 
or  allusion  to  charitable  uses;  and  it  is  assumed  that  they  would 
not  have  been  silent,  had  they  meant  to  abolish  them  ; but  it 
seems  far  more  reasonable  to  say,  that  had  they  meant  to  ex- 
cept them  from  the  universal  terms  of  the  enactments  which 
they  proposed,  they  would  certainly  have  said  so,  since,  had 
such  been  their  intention  the  necessity  of  a positive  exception, 
in  order  to  prevent  misconstruction,  could  not  possibly  have  es- 
caped them  ; on  the  other  hand,  if  they  meant  not  to  except, 
but  to  include  charitable  uses,  the  explanation  of  their  silence 
is  easy  and  obvious.  They  may  have  deemed  it  unnecessary  to 
speak  ; they  may  have  thought  that  the  provisions  which  they 
recommended,  spoke  for  themselves,  in  a language  that  neither 
the  legislature  nor  Judges  could  fail  to  understand.” 

I say,  then,  in  conclusion  of  this  branch  of  the  case,  that  de- 
vises and  bequests  to  charitable  uses,  are  within  all  the  mis- 
chiefs which  the  statute  of  uses  and  trusts  was  intended  to  pre- 
vent. They  are  often  made  in  extremis , under  wrong  influences, 
and  to  the  disinherison  of  heirs  and  next  of  kin.  “They  with- 
draw the  lands  and  assets  devoted  to  them,  from  commerce, 
and  render  them  inalienable,”  ( Lewis  on  Perpetuities , 688-9,) 
and  it  is  a breach  of  duty  to  alien  them,  whether  vested  in  a 
corporation  or  trustees.  In  that  respect  we  all  agree.  It  is  the 
doctrine  of  the  case  of  Williams  vs.  Williams , and  the  general 
doctrine  of  the  law.  I shall  not  go  into  the  question  con- 
cerning the  evils  which  have  arisen  from  them.  I shall  leave 
those  to  the  historical  recollections  of  the  Court,  and  to  such 
examination  as  they  may  think  proper  to  make  on  that  subject. 


24 


I proceed  now,  if  the  Court  please,  to  the  proposition,  that 
the  devise  and  bequest  as  to  the  dispensary  is  also  void  because 
it  is  in  contravention  of  the  provisions  of  the  Revised  Statutes, 
forbidding  accumulations  of  the  rents  and  profits  of  real  estate, 
or  of  the  income  of  personal  property,  except  in  the  cases 
therein  enumerated.  And  I maintain  that  the  accumulation  of 
rents  and  profits  provided  for  by  the  testator,  or  the  use  of 
lands  and  buildings  for  the  dispensary,  which  is  the  equivalent, 
is  not  “for  the  benefit  of  one  or  more  minors  then  in  being  and 
to  terminate  at  the  expiration  of  their  minority,”  as  authorized 
by  the  Revised  Statutes. 

Your  Honors  will  remember  the  “ wish  ” expressed  by  the 
testator,  without  regard  to  the  dispensary.  lie  wished  to  have 
it  fulfilled  within  ten  years. 

“ After  the  expiration  of  ten  years  or  sooner , if  my  executors 
find  there  will  be  sufficient  funds,  I would  wish  a public  Dis- 
pensary, &c.” 

There  must  of  course  be  an  accumulation  in  the  meantime, 
and  so  he  continues, 

“And  should  there  be  any  overplus,  my  executors,  within 
fifteen  years,  may  give  it  to  any  other  charitable  society  or 
societies,  for  relieving  the  comfortless  and  indigent ; they  shall 
select,  I say,  within  fifteen  years  from  my  death.” 

In  other  words,  the  interest  must  be  added  to.  the  principal 
as  fast  as  it  accumulates.  We  say  further,  that  it  is  not  directed 
to  commence  within  the  times  permitted  “ for  the  vesting  of 
future  estates,  and  during  the  minority  of  the  persons  for  whose 
benefit  it  is  directed,  and  to  terminate  at  the  expiration  of  such 
minority.”  (1  Rev.  St.,  72G,  § 37.)  And  then  comes  the  general 
prohibitory  clause,  (§  38,)  that  “all  directions  for  accumulation 
of  rents  and  profits,  other  than  those  allowed  by  this  and  the 


25 


next  section,”  shall  be  void  ( Haxtun  v.  Corse , 2 Barb.  Ch.  if., 
518) — language  just  as  strong  as  that  in  the  statute  concerning 
uses  and  trusts. 

So,  as  to  any  accumulation  of  the  interest  of  money,  or  in- 
come of  personal  property  necessary  to  found  or  carry  on  the 
Dispensary,  the  same  rule  applies.  The  statute  declares  “ all 
directions  for  the  accumulation  of  the  interest,  income,  or  pro- 
fits of  personal  property,  other  than  such  as  are  herein  allowed, 
shall  be  void.”  It  is  no  answer  to  these  objections  to  say,  that 
the  accumulations  are  only  implied,  inasmuch  as  it  would  be 
the  duty  of  the  trustees,  or  other  continuing  body  having  charge 
of  the  Dispensary  and  its  funds,  to  accumulate ; and  implied 
accumulations  are  as  much  forbidden  as  express  ones.  ( Vail  v. 
Vail , 4 Paige , 317 ; S.  C.  7 Barb.  S.  C.  i?.,  226 ; Hawley  v. 
James , 5 Paige , 318,  481.)  I do  not  know  to  what  extent  the 
recent  important  decisions  on  this  point  by  this  Court  have 
gone ; but  I do  not  deem  it  necessary  to  pursue  it  further  at 
present. 

Mr.  Reynolds,— In  what  part  of  the  will  do  you  claim  there 
is  a necessary  accumulation,  until  the  Dispensary  is  established  1 

Mr.  Noyes. — The  part  I have  already  referred  to,  I believe 
meets  the  suggestion  of  the  learned  counsel. 

I say,  in  the  next  place,  that  the  accumulations  are  not  with- 
drawn from  the  condemnation  of  the  statutes  which  declare 
them  void,  because  they  are  for  the  purpose  of  aiding  and  car- 
rying on  a charity,  for  the  reasons  I have  already  stated.  As 
they  are  expressly  forbidden,  nothing  short  of  legislative  pow- 
er can  legalize  them. 

I proceed  now  to  the  consideration  of  another  proposition, 
upon  which  I shall  not  devote  much  time.  It  is,  that  the  devise 
and  bequest  for  the  Dispensary,  is  wholly  uncertain  and  indefi- 
nite. It  vests  no  interest  in  any  person  or  persons  capable  of 
4 


26 


being  ascertained,  or  of  sueing,  or  being  sued  in  relation  to  it. 
And  as  it  stands,  and  without  the  aid  of  some  extraordinary 
power  not  usually  possessed  by  any  judicial  tribunal  exercising 
common  law  or  equity  powers,  it  is  incapable  of  being  carried 
into  effect. 

I claim  first,  that  it  specifies  no  place  where  the  Dispensary 
shall  be  built.  I wish  to  make  one  or  two  suggestions  on  that 
point,  growing  out  of  the  phraseology  of  the  will  and  its  cod- 
icils. It  is  said,  the  testator  lived  at  Kinder  hook  {Case,  fol.  3.), 
but  he  had  a house  and  lot  at  Canaan  { fol . 6).  He  came  ori- 
ginally from  Nottingham  ( fols . 5,  15),  and  he  made  large  be- 
quests to  societies  in  Philadelphia  {fols.  11,  13,  29,  32).  He 
mentions  also,  Stuyvesant  {fols.  10,  23) ; Hudson  {fol.  6) ; 
Oswego  {fol.  f and  New  York  {fol.  19).  Here  are  seven  dif- 
ferent places,  with  many  of  which  it  is  probable  he  was  almost 
as  well  acquainted  as  with  Kinderhook.  He  could  not  have 
preferred  the  latter  above  the  place  of  his  nativity;  because 
when  he  gave  over  the  estate,  he  couples  it  with  the  expression 
of  a doubt  whether,  when  all  his  bequests  prior  to  that  for  the 
Dispensary  was  discharged,  there  would  be  enough  left  to  found 
that  Institution.  Therefore  he  could  not  have  contemplated 
Kinderhook  as  the  particular  locality  for  the  establishment  of 
the  Dispensary  ; and  which  was  the  locality  he  did  intend,  must 
be  left  entirely  to  conjecture. 

Next,  it  provides  for  no  particular  sum  of  money  to  be  em 
ployed,  either  in  the  purchase  of  land,  or  in  buildings,  or  to 
carry  on  the  Dispensary;  thus  leaving  the  whole  expenditure 
uncertain.  It  furnishes  no  means  of  ascertaining  the  “sick  and 
lame”  who  are  to  receive  the  benefits  of  the  Dispensary  within 
its  own  walls,  or  “at  their  own  homes;”  so  that  the  beneficiaries 
are  wholly  uncertain.  Now,  in  the  first  edition  of  Swinbourne 
on  Wills , (A.D.  1590.)  at  page  251,  your  Honors  will  find  the 
following  passage,  which  shows  that  such  an  uncertainty,  even 


2T 


at  that  period,  rendered  the  disposition  of  the  funds  bequeathed 
a matter  of  discretion  with  the  executor  : 

“ In  like  manner,  if  the  testator  make  the  poor  his  executors, 
giving  them  the  residue  of  his  goods ; this  disposition  is  not 
void  by  reason  of  uncertainty,  for  that  is  a testament  ad  pias 
causas.  By  the  poor,  therefore,  is  understood,  the  poor  of  the 
parish  where  the  testator  did  dwell  and  keep  house ; for  it  is 
likely  he  did  have  a great  affection  to  the  poor  where  he  did 
dwell ; especially  also  if  the  testator  was  buried  in  the  same 
place.  * * * * * * But,  if  the  testator  do  bequeath  a 
certain  sum  to  be  distributed  among  the  poor,  and  do  appoint 
an  executor,  then  it  is  the  office  of  that  executor  to  distribute 
the  same,  who,  in  the  distribution  thereof,  is  not  necessarily  tied 
to  bestow  it  wholly  upon  the  poor  of  that  city,  parish,  or  place, 
where  the  testator  did  dwell,  nor  is  he  precisely  tied  to  make 
choice  of  the  poorest  persons,  but  may  use  a further  liberty,”  &c. 

Again,  it  makes  no  provision  as  to  the  persons  who  are  to 
purchase  the  lands,  erect  the  buildings,  or  superintend  their 
erection,  by  the  appointment  of  trustees  or  otherwise,  nor  any 
for  carrying  on  the  Dispensary  when  established.  No  overseers 
or  governors  are  appointed,  nor  any  provision  made  for  appoint- 
ing them,  or  for  perpetuating  the  trust ; so  that  its  managers 
are  wholly  uncertain.  Let  me  call  the  attention  of  the  Court 
to  the  terms  of  the  bequests,  for  the  purpose  of  showing  that  the 
testator  did  not  intend  to  establish  any  such  persons  as  trustees* 
He  knew  how  to  create  a trust,  and  did  so  in  several  instances* 
In  the  first  codicil,  he  wills  : 

“ — that  my  executors  purchased  a farm  in  trust , for  the 
benefit  of  my  nephews  and  nieces,  * * * * * my  executors  must 
have  a full  power  over  the  same  for  fifteen  years,  for  the  bene- 
fit of  all  my  nephews  and  nieces,  as  they  think  fit ; and  after 
the  fifteen  years  is  expired,  they  may  sell  the  same,”  &c* 

Showing  that  he  knew  it  was  necessary  in  some  cases  to  ere- 


28 


ate  a trust,  and  that  he  did  create  a trust  as  far  as  he  could  for 
this  family  in  apt  and  precise  words.  But  when  he  comes  to 
the  Dispensary,  he  drops  all  this  formal  language,  and  says  : 

“ — if  my  executors  find  their  will  be  sufficient  funds,  I 
would  wish  a public  Dispensary,  as  in  New  York,  on  a similar 
plan,  for  indigent  persons,  botb  sick  and  lame,  to  be  attended 
by  a physician  elected  to  the  establishment,  at  their  own  homes  ; 
and  also  daily,  at  the  Dispensary.” 

He  “ wishes  ” it  to  be  done,  without  saying  who  shall  do  it, 
and  without  creating  any  trust ; when  in  the  same  instrument, 
and  on  the  preceding  page,  he  creates  a valid  trust  for  his  sis- 
ter’s family.  Then,  again,  in  the  same  instrument  we  find  : 

“ I give  and  bequeath  all  my  estate  then  remaining,  if  any 
there  shall  be,  to  my  executors  in  trusty  that  they  shall  and  may 
apply  the  same,”  &c. 

Showing  that  he  had  created  specific  trusts  in  two  instances, 
and  left  a wish  for  a third  as  I have  shown  ; so  that,  ex  indus- 
trial, there  were  no  trust  intended  to  be  established  in  regard  to 
this  Dispensary. 

And  he  does  not  make  or  authorize  the  making  of  any  pro- 
vision for  the  choice  of  a “ physician  to  be  elected ” to  the  es- 
tablishment, or  “ for  a new  election  in  case  of  vacancy,”  as  will 
be  seen  by  reference  to  the  part  of  the  will  I have  just  quoted  ; 
so  that  the  mode  of  choosing  its  head  officers  is  wholly  uncertain. 

The  result  of  all  which  clearly  is,  even  under  the  English 
doctrines  in  regard  to  charitable  uses,  that  there  are  no  persons 
capable  in  law  of  ascertaining  the  amount  of  the  funds  neces- 
sary for,  or  of  locating  the  Institution,  or  of  administering  it 
when  established,  or  of  perpetuating  its  existence ; nor  are  the 
necessary  funds,  or  any  part  of  them,  given  to  any  one  for  the 


29 


purpose  of  a Dispensary.  And  I contend  that  no  person  other 
than  the  Crown  could  bring  any  suit,  at  law  or  in  equity,  in  re- 
gard to  such  funds,  against  the  executors,  or  next  of  kin  of  the 
testator,  for  want  of  a sufficient  legal  or  equitable  interest  to 
maintain  such  suit ; and  hence,  no  such  suit  could  be  maintained 
here,  except  in  behalf  of  the  State.  Now,  who  else  can  bring 
the  suit?  Who  has  a definite  legal  interest?  Who  has  any 
care  of  the  fund,  as  trustee,  under  the  law,  except  it  be  the 
Legislature,  or  the  People,  or  the  Crown  exercising  the  pre- 
rogative existing  in  such  cases,  by  sign-manual.  There  can  be 
no  legal  or  equitable  interest  such  as  I have  named,  except  that 
which  the  Sovereign  always  possesses  in  England,  or  which  ex- 
ists in  the  People,  as  to  property  devoted  to  a charitable  use 
and  then  only  to  see  that  it  is  properly  applied  to  such  use. 

But  I assert  that  neither  the  People  of  the  State,  nor  the  State 
as  its  representative,  could  maintain  any  action  whatever  in 
regard  to  the  funds  and  property  necessary  to  establish  and 
carry  on  the  Dispensary ; or  as  to  the  residue  as  owner,  or  as 
having  any  legal  title  founded  upon  absolute  proprietorship. 
They  are  not  devised  or  bequeathed  to  the  State  or  to  the  Peo- 
ple ; nor  does  a title  of  any  sort  vest  in  them  by  reason  of  any 
uncertainty  in  the  devises  or  bequests,  or  because  of  their  fail- 
ure, or  on  any  other  ground.  I do  not  mean  to  say  that  in  a 
certain  view  of  the  law  in  England,  the  title  would  not,  in  some 
cases,  vest  in  the  Crown ; but  I do  say  it  would  not,  under  any 
condition  of  our  law,  vest  in  the  People  of  the  State  of  New 
York.  Prima  facie,  the  heirs  and  next  of  kin  are  entitled; 
and  their  right  to  the  succession  cannot  be  displaced,  except  by 
some  positive  existing  rule  of  law,  giving  the  control  and  dispo- 
sition of  the  funds  and  property  to  some  one  else,  or  to  some 
legal  tribunal,  and  thereby  divesting  their  interest. 

Chief  Justice  Comstock* — Does  it  not  vest  in  the  executors  in 
the  first  instance  1 


Me.  Noyes — Yes,  certainly  ; but  it  does  not  vest  in  the  Peo- 
ple, 

Chief  Justice  Comstock. — Would  not  the  executors  take  the 
personal  property  then,  as  trustees  ? 

Me.  Noyes — They  would  not.  As  executors,  they  are  not 
trustees  of  a charity.  They  take  it  as  executors  only  under  the 
will  and  codicils,  and  hold  it  for  those  who  are  legally  entitled 
to  it.  If  the  purpose  declared  by  the  will  and  codicils  is  void 
or  illegal,  they  take  it  for  the  next  of  kin. 

Now,  if  the  creation  of  a trust  for  a dispensary  was  illegal, 
then  the  heirs  and  next  of  kin  would  take.  ( West  v.  Shuttle - 
with,  2 Myl  <&  Keene , 685.)  So,  if  the  purpose  of  the  testator 
cannot  take  place  by  reason  of  indefiniteness,  or  any  other  cause 
not  involving  an  illegality,  “ the  Courts  (even  in  England)  will 
not  look  out  and  substitute  another  as  they  once  did.”  ( Boyle 
On  Charities , 147.)  That  is  the  modern  doctrine  in  England, 
and  is  contained  i n Shelf ord  on  Mortmain , 201,  and  in  the  cases 
there  cited.  I will  ask  the  Court  to  note  also  the  cases  of 
Waldo  v.  Casey  (16  Vesey , 206),  and  Hoard  v.  Earl  of  Suffolk 
(2  Myl  <&  Keene , 59).  Hill  on  Trustees , at  page  131,  states  the 
rule : 

“ Where  by  the  express  direction  of  the  testator,  although  the 
property  is  devoted  generally  to  charity,  its  distribution  and  the 
selection  of  the  objects  are  left  entirely  in  the  power  and  at  the 
discretion  of  the  trustee,  the  Court  will  not  control  the  exercise 
of  that  discretion  by  directing  a scheme,  unless  a case  of  mis- 
conduct is  established.” 

And  Judge  Denio,  in  the  case  of  Williams  v.  Williams  (1 
Seld.,  at  page  548),  says  : 

“It  is  a clear  principle  of  law,  that  an  heir  cannot  be  disin- 


31 


lierited  without  plain  words  of  gift  or  necessary  implication  ; 
and  in  doubtful  cases , the  title  of  the  heir  will  prevail” 

Now,  here  the  executors  never  qualified  or  proved  the  will, 
but  renounced,  and  the  whole  title,  if  any,  went  to  the  adminis- 
trator with  the  will  annexed.  So  that  they  never  were  execu- 
tors, and  never  took  any  estate  or  interest  whatever. 

Unless,  therefore,  the  State,  represented  by  the  Attorney 
General,  or  the  Court  of  Chancery  in  the  exercise  of  its  ordinary 
equity  jurisdiction,  can  wrest  the  estate  from  the  heirs  and  next 
of  kin,  to  whom  it  has  passed  by  succession  prima  facie,  and 
devote  it  to  the  purposes  specified,  or  some  other,  their  title  is 
perfect.  And  I submit  that  no  such  authority  exists  in  the 
State,  or  in  any  person  representing  it ; and  that  there  was  no 
.such  jurisdiction  in  equity  in  England,  independently  of  the 
Statute  of  43d  Elizabeth,  and  none  in  this  State.  The  point 
has  never  been  adjudged  in  this  Court  in  any  case,  nor  has  any 
principle  been  settled  adversely  upon  which  this  case  depends. 

I do  not  think  it  was  settled  in  the  case  of  Williams  v.  Wil- 
liams, although  the  doctrine  asserted  there  tended,  as  has  been 
supposed,  to  a different  result.  That  case  decided  only,  first , 
that  a religious  corporation,  authorized  to  take  for  “ pious  uses,55 
could  receive  a legacy  of  money  for  the  support  of  its  minister 
to  the  amount  limited  by  its  charter  ; and  second , that  a bequest 
to  three  trustees  named,  of  a fund  u for  the  exclusive  education 
of  poor  children,55  “ who  shall  be  educated  at  the  Academy  in 
the  village  of  Huntington,  or  in  the  school-house  next  west  of 
it,55 — “ no  part  of  the  fund  to  be  appropriated  to  the  erection  or  ✓ 
repair  of  buildings,55  the  trustees  to  be  maintained  in  perpetuity 
by  the  survivors  filling  up  vacancies ; was  a valid  trust  under 
the  English  law  of  charitable  uses,  and  not  in  contravention  of 
our  statute  concerning  uses  and  trusts,  or  as  to  accumulations  of 
personal  property.  Now,  there  was  a bequest  in  substance  to 
an  unincorporated  academy,  the  purpose  of  which  was  the  edu- 


32 


cation  of  children  and  youth.  If  it  had  failed  in  respect  of 
trustees,  it  would  still  have  been  good  for  the  academy,  which 
the  learned  judge  then  regarded  as  an  incorporated  institution 
within  the  principle  already  cited  as  established  in  the  case  of 
Shepherd  v.  Me  Evers  {supra). 

I will  now  proceed,  with  the  permission  of  the  Court  and 
with  respectful  deference,  to  prove  that  there  is  no  conflict  of 
opinion  between  that  case  and  the  views  which  I shall  present 
in  regard  to  the  law  of  charitable  uses. 

According  to  the  opinion  (4  Selden , at  page  542),  the  learned 
Judge  says : 

u From  a careful  examination  of  these  authorities,  I have  come 
to  the  conclusion  that  the  law  of  charities  was,  at  an  indefinite 
but  early  period  in  English  judicial  history,  engrafted  upon  the 
common  law : that  its  general  maxims  were  derived  from  the 
civil  law,  as  modified  in  the  later  periods  of  the  Empire  by  the 
ecclesiastical  element  introduced  with  Christianity ; and  that 
the  statute  of  charitable  uses  was  not  introductory  of  any  new 
principles , but  was  only  a new  and  less  dilatory  and  expensive 
method  of  establishing  charitable  donations,  which  were  under- 
stood to  be  valid  by  the  laws  antecedently  in  force.” 

With  great  respect,  I propose  to  differ  from  the  latter  part  of 
that  opinion,  and  by  an  examination  of  the  authorities,  to  show 
that  the  learned  judge  was  in  error,  and  that  the  statute  of  43d 
Elizabeth  did  introduce  a new  and  entirely  different  set  of  rules 
and  principles  in  reference  to  the  validity  and  execution  of 
charitable  uses  and  trusts. 

Ilis  Honor  goes  on  to  state,  {page  348) 

“ — that  the  English  doctrine  is  in  force  here,  only  so  far  as  it  is 
adapted  to  our  political  condition.  In  that  class  of  cases,  there- 
fore, where  the  gift  is  so  indefinite  that  it  cannot  be  executed  by 
the  Court,  and  where  the  purpose  is  illegal  or  impossible,  the 
claim  of  the  representatives  of  the  donor  must  prevail  over  the 


33 


charity.  The  reason  is,  that  we  have  no  magistrate  clothed 
with  the  prerogatives  of  the  Crown,  and  our  Courts  of  Justice 
are  entrusted  only  with  judicial  authority.  Where  the  gift  is 
capable  of  being  executed  by  a judicial  decree , I know  of  no  rea- 
son why  the  Court  should  refuse  to  execute  it.55 

Undoubtedly  such  a gift  may  be  executed  by  a judicial 
decree  to  be  made  between  the  parties  having  an  interest  in  the 
subject  matter,  or  having  a right  to  control  or  dispose  of  the 
fund  as  trustees.  There  is  no  doubt  of  that.  He  continues  : 

“ It  is  unnecessary  to  decide  in  this  case  whether  we  could 
proceed  upon  the  notion  of  approximation  where  it  is  impossible 
to  execute  the  gift  substantially,  according  to  the  terms  of  the 
grant  or  devise.  My  own  opinion  is,  that  the  distribution  of 
powers  among  the  great  departments  of  the  government,  which 
is  a fundamental  doctrine  in  the  American  system,  would  pro- 
hibit  the  Courts  from  exercising  a jurisdiction  so  purely  discre- 
tionary. But  in  this  case,  there  is  no  occasion  for  an  executive 
sign  manual,  or  for  the  application  of  what  is  called  the  cypres 
doctrine.  There  is  here  a good  trustee  to  take  the  funds  in  the 
first  instance  ; and  a succession  of  trustees  may  be  provided  by 
the  Court  by  newr  appointment,  as  often  as  circumstances  may 
require.  The  trust  is  for  the  education  of  the  children  of  the 
poor,  at  a particular  institution  of  learning,  which  I presume  to 
be  an  incorporated  Academy  ; and  a rule  of  ready  application 
is  given  for  selecting  the  objects  of  the  testator’s  bounty.  It  is 
true  that  no  locality  from  which  the  poor  children  are  to  come, 
is  prescribed,  but  practically,  they  will  be  chosen  from  families 
residing  in  the  vicinity  of  the  academy.  If  there  should  be  an 
excess  of  beneficiaries,  it  will  become  the  duty  of  the  trustees  to 
select  such  as  are  to  enjoy  the  benefit  of  the  legacy.” 

Then,  His  Honor  goes  on,  and  cites  the  cases  in  which  the 
Crown  and  the  Court  may  interpose,  and  the  opinion  con- 
cludes (page  550)  : 

“ It  is  only  where  the  purpose  is  indefinite,  as  in  the  case  of 
5 


34: 


a gift  for  a charity  generally,  or  has  become  impracticable, 
f on  account  of  the  death  of  a party  who  was  to  select  the  object, 
or  is  illegal,  as  in  the  case  last  referred  to,  that  the  aid  of  the 
Crown  is  required.” 

Now,  I say  that  other  cases  in  this  country,  prior  and  subse- 
quent to  this  decision,  are  hostile  to  the  doctrine  that  the  Eng- 
lish law  of  charitable  uses,  as  it  now  exists  in  that  country, 
ever  was  a part  of  the  general  common  law  of  England ; or 
that  it  was  ever  administered  in  Chancery  in  that  form,  prior 
to  the  Statutes  of  Elizabeth  ; or  that  it  existed  there  in  its  pre- 
sent condition,  without  the  aid  of  those  statutes.  I have  re- 
ferred to  these  cases  on  my  points  : {Baptist  Ass'n.  vs.  Hart's 
Fx'rs .,  4 Wheats  1 ; McAuley  vs.  Wilson , 1 Dev . Eg.  B..  276  ; 
Griffin  vs.  Graham , 1 Hawk's  i?.,  96  ; Dashiel  vs.  Atty.  Gen 
5 Harr.  de  J.  392,  S.  G.  6 Id.  1 ; Green  vs.  Dennis , 6 Conn .,  293  ; 
Witmann  vs.  Lex , 17  Berg.  <&  B.,  88  ; Galligo's  Ex'rs  vs.  Atty. 
Gen.,  3 Leigh , 450;  Holland  vs.  Peek)  2 Iredell  Oh.  B.,  255  ; 
State  vs.  Gerard)  Id.  210 ; Briges  vs.  PleasantS)  4 Id.  26  ; 
White  vs.  Fish)  22  Conn.)  31 ; Chittenden  vs.  Chittenden)  1 
Am.  Law  Beg.)  53S;  Fontaine  vs.  Bavenel)  17  How.  TJ.  S.  B ., 
369  ; Owens  vs.  Miss.  Soc 14  JY.  Y.  B .,  3S0.)  I do  not  mean 
to  examine  them  at  any  considerable  length . I will,  however, 
call  the  attention  of  the  Court  to  the  concluding  part  of  Judge 
Selden’s  opinion  in  the  case  last  cited,  as  to  the  remedy  by 
information  here,  to  reform  or  prevent  the  abuse  by  a trustee 
of  his  trust.  He  says  {page  408) : 

“ — the  remedy,  by  information,  so  far  as  it  was  a common 
law  remedy,  is  as  available  here  as  in  England,  although  it 
must  undoubtedly,  be  modified  so  as  to  conform  to  our  differ- 
ent modes  of  proceeding.  Informations  have  been  said  to  be  a 
prerogative  remedy,  and  it  is  true  that  the  jurisdiction  exer- 
cised upon  them  was,  in  some  degree,  strengthened  and  ex- 
tended by  a resort  to  the  royal  prerogative;  but,  it  is,  never- 


35 


theless,  plain  that  such  informations  were  the  natural  result  of  the 
application  of  common  law  principles  and  forms  of  proceeding 
to  those  particular  cases,  and  that  they  could  be  and  were  sus- 
tained, independently  of  prerogative.  Here,  this  remedy  must 
assume  the  form  of  an  ordinary  suit,  in  the  name  of  the  Attor- 
ney General,  or,  perhaps,  of  the  People  of  the  State,  and  would 
be  limited  in  its  scope  by  the  principles  of  the  common  law. 
I see  no  reason  why,  to  this  extent,  it  may  not  be  administered 
by  our  Courts.” 

The  case  of  the  Att’y  Gen.  vs.  Compton , (1  Young  <&  Coll., 
417)  is  to  the  same  point. 

Vice-Chancellor  Bruce  said  : 

“ Where  property,  affected  by  a trust  for  public  purposes,  is 
in  the  hands  of  those  who  hold  it  devoted  to  that  trust,  it  is  the 
privilege  of  the  Public  that  the  Crown  should  be  entitled  to  in- 
tervene, by  its  officer,  for  the  purpose  of  asserting,  on  behalf 
of  the  Public  generally,  which  probably  no  individual  could 
be  found  willing  effectually  to  assert,  even  if  the  interest  were 
such  as  to  allow  it.” 

The  array  of  cases  cited  all  follow  in  the  same  direction  ; 
although  as  to  the  particular  subject  matter  and  its  minor  de- 
tails, each  may  differ  from  all  the  rest.  There  are  other  cases 
to  the  contrary  which  should,  in  frankness,  also  be  referred  to. 
That  of  Ex’ rs  of  Burr  vs.  Smith , (7  Vermont  7?.,  211,)  decides 
that  an  unincorporated  association  may  take  a bequest  for  a 
charitable  use.  Wright  vs.  Trustees  Meth.  Ch .,  ( Hoffman  Ch * 
Z?.,  202,)  did  not  involve  the  question.  Vidal  vs.  Girard’s 
Ex’rs.  (2  Hoio.,  U.  S.  B.  127),  more  usually  known  as  the 
Girard  Will  Case , did  not  involve  the  question  either.  The 
opinion  is  there  expressed  “ that  the  corporation  of  the  city  (of 
Philadelphia)  is  capable  by  law  of  taking  the  donation  for  such 
trusts.”  There  the  bequest  was  to  the  city  of  Philadelphia  as  a 
trustee.  The  Statute  of  43d  Elizabeth  was  held  to  prevail  in 


36 


Pennsylvania,  and  hence  the  bequest  was  sustained.  It  is  true 
that  Justice  Story  remarked  in  that  case  “ that  very  strong 
additional  light  has  been  thrown  upon  this  subject  by  the  re- 
cent publications  of  the  Commissioners  on  the  public  Records 
in  England,  which  contain  a very  curious  and  interesting  col- 
lection of  the  Chancery  Records  in  the  reign  of  Queen  Eliza- 
beth, and  in  the  earlier  reigns,”  and  he  expresses  a doubt 
whether  these  would  not  have  removed  the  difficulty  enter- 
tained by  the  Supreme  Court  of  the  United  States,  in  the  case 
of  Baptist  Ass*n  vs.  Hartfs  Ex'rs,  which  I have  already  cited, 
which  held  that  the  English  law7  of  charitable  uses  did  not  ob- 
tain generally  in  this  country. 

Chief  Justice  Comstock. — Could  not  the  City  of  Philadel- 
phia, by  the  common  law,  have  taken  the  bequest  as  trustees 
for  the  charity  ? 

Mr.  Noyes. — I confess,  I did  not  think  they  could,  although 
the  Court  seemed  so  to  hold  ; for  the  establishment  of  a college  for 
the  education  of  orphans,  without  a grant  of  express  power  to 
that  effect,  wTould  hardly  be  the  proper  office  of  a municipal 
corporation.  I shall  not  enter  into  an  examination  of  these 
points  or  the  authorities,  as  I know  them  to  be  familiar  to  your 
Honors. 

But,  conceding  that  the  English  Court  of  Chancery  did,  prior 
to  the  Statutes  of  39  Elizabeth,  Cap.  6,  (repealed  by  43  Eliza- 
beth, Cap.  9,  see  Qibsorts  Codex,  1113,)  and  43  Elizabeth,  Cap . 
4,  take  cognizance  of  trusts  for  charities  in  some  cases;  the 
material  inquiry  is,  whether  it  ever  administered  assets  on  the 
profits  of  real  estate,  or  enforced  trusts  created  for  the  purposes 
of  charity,  as  it  confessedly  did  after  those  statutes,  and  under 
their  authority.  In  other  words,  whether  they  w’ere  not  held 
to  authorize  its  interference  in  an  entirely  new  class  of  cases, 
and  did  not  introduce  a new  set  of  principles.  I respectfully 
submit  they  did. 


37 


There  has,  hitherto,  been  much  doubt  about  the  line  of  de- 
mark a tion  of  the  jurisdiction  of  Chancery  over  charitable  uses, 
and  the  extent  of  the  jurisdiction.  Much  difficulty  has  arisen 
in  determining  where  it  began,  and  what  cases  it  reached — 
where  the  line  was  to  be  drawn.  I propose,  if  the  Court  please, 
to  show  where  it  did  begin,  and  to  what  extent  it  was  carried  ; 
and  1 maintain  that,  in  cases  of  charitable  uses,  prior  to  these 
statutes  of  Elizabeth,  the  jurisdiction  of  Chancery  could  only 
have  been  exercised,  if  exercised  at  all,  in  the  following  in- 
stances, which  I will  consider  : 

First,  in  Feoffments  to  Uses.  Now,  the  term  “ charity,” 
or  “ charitable  use,”  is  not  found  in  any  of  the  old  common 
law  books.  It  does  not  occur  in  Statham's  Abridgment , the 
first  book  of  English  law  ever  printed— published  in  1470  ; nor 
in  Fitzherbert  (A.  D.  1514),  nor  even  in  Brooke , (A.  D.  1573). 
True,  there  is  a head  in  the  latter,  “ Feoffments  to  Uses” ; but 
it  contains  no  such  doctrine  in  regard  to  them,  and  they  were 
wholly  void  at  common  Jaw — 'giving  no  right  to  the  land  or 
the  profits,  nor  was  any  remedy  afforded  for  either,  by  their 
modes  of  procedure.  (Spence  Eg.  Jur.  of  Ch .,  439,  441 ; Ba- 
con's Beading  on  Stat.  of  Uses , Vol.  3 of  Works , 302.)  They 
were,  in  truth,  invented  by  the  ecclesiastics  to  evade  the 
statutes  of  Mortmain,  and  they  chiefly  acquired  their  import- 
ance in  the  civil  wars  which  prevailed  in  Englannd  for  a long 
period  of  years,  and  when  there  was  danger  of  the  unsuccessful 
party  being  attainted— their  office  being  to  save  the  property 
by  means  of  the  use,  as  the  attainder  only  affected  the  legal 
estate. 

In  the  early  periods  of  English  judicial  history,  the  Ecclesi- 
astical Courts  assumed  and  had  jurisdiction  over  breaches  of  faith 
and  trusts — whether  by  u feoffments  to  usesj”  or  otherwise — 
operating  upon  the  conscience  of  the  trustee,  and  visiting  him 
with  excommunication  if  he  refused  obedience.  There  was  no 


38 


necessity  of  going  into  the  Court  of  Chancery  for  a decree,  be- 
cause the  Ecclesiastical  Court  had  the  power  and  enforced  it 
by  the. penalty  of  excommunication,  which  was  a fearful  one. 
The  historian  Froude  thus  describes  its  potency.  (Hist,  of 
Engl. , Vol.  1,  192.) 

14  It  was  no  light  thing  when  it  was  equivalent  to  outlawry; 
when  the  person  excommunicated  might  he  seized  and  impri- 
soned at  the  will  of  the  Ordinary ; when  he  was  cut  off  from  all 
holy  offices;  when  no  one  might  speak  to  him,  trade  with  him, 
or  shew  him  the  most  trivial  courtesy  ; and  when  his  friends,  if 
they  dared  to  assist  him,  were  subject  to  the  same  penalties.” 

Now,  the  statute  of  15  Richard  II.,  (A.D.  1491)  which  de- 
nounced the  evasions  of  the  statutes  of  mortmain  by  means  of 
feoffments  to  uses,  and  brought  them  within  the  operation  of 
those  statutes,  came  into  being  contemporaneously  with  the  es- 
tablishment of  the  Court  of  Chancery  ; and  of  course  it  put  a 
stop  to  applications  to  the  Clerical  Chancellors  in  such  cases, 
if  there  were  any,  which,  however,  does  not  appear.  (Spence 
Eg.  Jur.  of  Chari.,  442.) 

Lokd  Bacon  says  (Reading  on  Stat.  Uses ),  he  finds  no  act  of 
attainder,  using  the  words  44  which  he  has  in  possession  or  in 
use,”  until  the  reign  of  Edward  IY.  (A.D.  1416) ; and  he  col- 
lects out  of  Choke’s  speech  in  the  eighth  year  of  that  reign 
(A.D.  1469),  that  there  were  no  such  instances ; for  he  says  : 

44  — that  by  the  advice  of  all  the  judges,  it  was  thought  that 
the  subpoena  did  not  lie  against  the  heir  of  the  feoffee,  which 
was  in  by  law , but  that  the  eestue  gue  trust  was  driven  to  Bill  in 
Parliament ; for  no  doubt  the  Chancery,  at  the  first,  made  dif- 
ficulty in  giving  any  remedy  at  all,  but  to  leave  to  the  particu- 
lar conscience  of  the  feoffee ; but  after  the  Chancery  grew  ab- 
solute, as  may  appear  by  the  statute  made  in  the  reign  of  Hen- 
ry YI.,  (whose  reign  began  A.D.  1422,)  that  complainants  in 


39 


Chancery  should  enter  into  bonds  to  prove  their  suggestions, 
which  sheweth  that  at  that  time  the  Chancery  began  to  embrace 
too  far,  and  was  used  for  vexation ; yet,  nevertheless,  it  made 
scruple  to  give  remedy  against  the  heir  being  in  by  act  of  law, 
though  he  was  privy.” 

And  they  were  subsequently  compelled  to  give  pledges  to 
prosecute  as  in  the  old  Common  Law  process,  which  existed 
several  years  ago  in  this  State. 

The  first  notice  of  such  an  application  according  to  Mr. 
Spence,  was  in  the  reign  of  Henry  Y.,  which  began  A.D.  1413 
—nearly  a quarter  of  a century  after  the  Court  had  been  es- 
tablished. He  says  [Eg.  Jur.  of  Cha'y , p.  443) : 

“ — at  which  time,  as  we  have  seen,  the  greater  part  of  the 
lands  in  England  were  held  by  feoffees  in  trust;  it  was  no  long- 
er possible  to  leave  the  fulfilment  of  trusts  to  the  influence  of 
the  mere  dictates  of  honour,  or  to  the  coercion  of  the  confessor 

The  Ecclesiastical  Courts  undoubtedly  had  jurisdiction  in  the 
first  instance.  That  being  taken  away,  and  half  of  the  lands  in 
the  realm  being  in  the  hands  of  feoffees  in  trust,  the  Chancel- 
lor, as  Judge  for  matters  of  conscience,  was  applied  to,  and  the 
applications  were  entertained.  In  the  case  cited  by  Spence, 
[Dodd  v.  Browning , et  at.,  1 Calendars  in  Chan.,p.  13)  we  have 
an  instance  where  the  feoffor  appears  against  the  feoffee  suing  for 
the  application  of  the  trust  to  its  use  ; the  feoffee  having  let  the 
feoffor’s  lands  and  withheld  his  goods  without  authority.  It 
was  the  ordinary  case  of  a person  interested  in  a trust  fund  ask- 
ing by  bill,  that  the  property  be  applied  to  the  purposes  of  the 
trust,  by  the  intervention  of  the  Court  of  Chancery.  All  this 
power  wTas  independent  of  the  jurisdiction  of  charitable  uses, 
or  of  pious  uses . That  had  always  belonged  to  the  church,  and 
Chancery  had  nothing  to  do  with  it,  which  renders  it  quite 
clear  that  the  jurisdiction  of  Chancery  over  feoffees  in  trust, 
)vas  not  settled  until  the  year  1469. 


40 


As  the  uses  of  a feoffment  could  be,  and  usually  were 
declared  by  wull,  the  power  of  equity  over  wills  would  be 
the  next  ground  upon  which  the  jurisdiction  of  Chancery 
might  have  been  invoked,  if  it  had  existed.  But  wills  were 
always  proved,  and  the  goods  or  property  administered  in 
the  Ecclesiastical  Courts ; and  this,  whether  they  contained 
gifts  to  pious  uses  or  not.  If  they  did,  it  was  particularly 
a matter  for  the  Spiritual  Courts.  This  was  the  rule  as  to 
all  wills.  They  wTere  exclusively  within  the  jurisdiction  of  the 
Ecclesiastical  Courts,  and  the  Court  of  Chancery  had  nothing 
to  do  with  them,  or  with  administering  the  property  bequeathed 
by  them.  The  power  to  make  wills  was  indeed  limited  until 
the  statute  of  34  and  35  Henry  YIII.  passed  in  1513,  five 
years  after  the  statute  of  uses ; yet  some  wills  could  be  made 
and  they  were  common,  as  to  personalty  at  least,  and  trusts 
could  be  created  by  them  ( Wentworth  on  Executors , 470,  477), 
the  same  as  the  uses  of  feoffments  could  be  declared  by  will  in 
certain  cases.  My  position  is,  that  the  uses  being  stated,  wheth- 
er based  upon  a trust  created  by  will,  or  a will  declaring  the 
uses  of  a feoffment,  the  Court  of  Chancery  at  that  day,  and  for 
a long  period  afterwards,  exercised  no  authority  over  them. 

But  wills  to  pious  uses  were  always  favored  by  the  civil  and 
ecclesiastical  law.  Before  the  time  of  Justinian,  a general  in- 
definite gift  by  will,  for  the  poor,  was  void.  He,  by  an  edict, 
declared  that  “ a gift  for  poor  persons,  by  will  or  codicil,  is  not 
to  be  lost,  but  is  to  be  preserved  firm  and  fixed  by  every  means 
possible.”  {Code  Lib.  1,  Tit.  III.,  “ De  Episcopis ,”  § 25  ; 2 
Corp.  Juris.  Civilis , by  Richter,  30,  43,  46.)  Thus  the  original 
rule  of  the  Boman  law  was  precisely  like  that  of  the  common 
law,  that  a general  indefinite  gift,  although  for  the  poor,  was  void 
without  the  aid  of  a statutory  enactment.  The  edict  continues  : 

“ — That  if  any  dying  person  shall  have  made  a pious  be- 
quest, either  in  the  form  of  an  institution,  or  by  a legacy,  or 
trust,  or  donatio  causa  mortis , or  by  any  other  lawful  means 


41 


whatsoever,  whether  he  shall  have  enjoined  upon  the  bishop 
that  he  undertake  the  charge  for  a time  so  that  what  he  wished 
might  be  accomplished ; or  whether  he  shall  have  said  nothing 
on  this  subject ; or  whether,  on  the  other  hand,  he  may  have 
forbidden  it,  the  heirs,  as  matter  of  necessity,  shall  have  to  do 
and  accomplish  that  which  has  been  directed,  by  every  means 
in  their  power.  But  if  they  shall  be  unwilling  to  do  these 
things,  then  the  most  pious  bishops  in  the  district  shall  investi- 
gate these  matters,  and  exhort  them  to  accomplish  all  things 
according  to  the  wishes  of  the  deceased.  If,  however,  the  test- 
ator shall  have  enjoined  the  erection  of  a building,  they  may  do 
the  work  within  three  years,  so  that  it  be  done  ; but  if  he  shall 
have  imposed  upon  them  the  construction  of  a hospital,  they 
may  certainly  compel  that  to  be  done  within  a year,  so  that  this 
period  of  time  may  be  fixed  as  that  in  which  to  accomplish  the 
wishes  of  the  testator.  For  a house  may  be  hired  for  the  latter 
purpose,  and  the  sick  on  couches  conveyed  there  until  the  work 
of  building  the  hospital  shall  be  completed.  But  if  anything 
is  directed  to  be  given  at  once  to  charitable  uses , they  (the  bishops) 
may  cojnpel  these  (heirs)  to  do  it  immediately , for  this  is  accord- 
ing to  the  implied  will  of  the  testator,  and  according  to  the  pro- 
visions of  the  inheritance  or  legacy  granted  by  those  who  have 
been  thus  honorable.” 

That  is  the  English  law  of  mortmain  an\l  uses,  exactly  as  it 
was  administered  at  the  time  of  the  passage  of  the  Statute  43d 
Elizabeth.  Such  testaments  were  directed  to  be  proved  and 
administered  in  a mode  pointed  out  by  another  edict,  before 
ecclesiastical  tribunals  only.  ( Aylijfds  Par  ergon , 264.)  And 
those  containing  any  bequests  to  pious  uses,  were  among  the 
class  of  privileged  testaments,  and  were  exempt  from  most  of 
the  ordinary  rules  affecting  the  validity  of  other  wfills.  Your 
Honors  will  find  these  privileges  set  forth  in  the  first  edition  of 
Swinburne  on  Wills , (published  in  1590,)  at  page  30,  whicli 
contains  the  law  as  it  existed  at  that  period,  and  prior  to  both 
the  statutes  39th  and  43d  Elizabeth,  as  to  charitable  uses.  There 
are,  in  fact,  precise  provisions  as  to  testaments  in  a series  of 
6 


42 


articles,  all  of  which  have  diffused  themselves  through  the  law 
of  England,  and  which  were  invariably  acted  upon  in  the 
Ecclesiastical  Courts,  where  property  was  bequeathed  for  the 
use  of  the  poor,  or  by  any  legal  means  charged  with  a trust  for 
a pious  use.  I refer  to  Godolphin's  Orphans'  legacy , (3d  edi- 
tion, A.  D.  1685,)  as  containing  the  same  rules  in  substance. 
One  of  these  privileges  is,  that,  if  the  will  be  cancelled  on  its 
face,  “ the  law  doth  presume  it  to  be  cancelled  unadvisedly ; 
and  so  it  is  in  effect  as  if  it  had  not  been  cancelled  at  all ; 
whereas , in  other  testaments , the  contrary  is  presumed." 

Another  is,  that 

“ — it  is  not  void  in  respect  of  uncertainty  (as  other  testaments 
are),  and,  therefore,  if  the  testator  say,  I make  the  poor  my 
executors,  or,  I will  that  my  goods  be  distributed  amongst  the 
poor,  such  manner  of  appointing  executors  or  legacies  is  not 
void.” 

Is  it  not  clear  then,  such  being  the  ecclesiastical  law,  and 
such  the  privileges  of  these  wills,  that  they  would  always  be 
administered  in  the  Ecclesiastical  Courts,  where  such  rules  pre- 
vailed, rather  than  in  those  tribunals  where  no  such  rules 
existed  1 

I contend,  further,  that  there  is  no  evidence  that  any  of  these 
rules,  in  regard  to  such  testaments,  wrere  ever  adopted  or  acted 
upon  in  the  Court  of  Chancery  in  England, — even  during  the 
time  that  the  Ecclesiastical  Chancellors  sat  in  that  Court. 
They  never  were  acted  upon,  qualifiedly  or  otherwise,  until  the 
statute  of  43d  Elizabeth.  And  obviously  there  was  no  neces- 
sity for  it,  as  the  Ordinary  superintended  the  distribution  of 
the  assets  in  all  cases,  whether  specially  bequeathed  or  not,  and 
whether  given  to  pious  uses  or  not.  There  was  no  necessity  for 
going  into  the  Chancery  for  a discovery  in  aid  of  any  proceed- 
ing in  the  Ecclesiastical  Court ; as  the  latter  could  examine  all 


43 


parties,  and  always  had  the  strongest  control  of  the  conscience 
of  offending  feoffees  to  uses  and  other  trustees,  by  means  of  its 
spiritual  thunders,  especially  after  it  was  authorised  to  compel 
a verification  of  the  accounts  of  executors.  It  excommunicated 
for  non-compliance  as  well  as  for  general  disobedience  to  its 
judgments.  ( Wentworth  on  Executors , 417;  Latch's  Cases , 
117.) 

Again : The  Court  of  Chancery  could  not  for  many  years 
after  its  institution,  have  exercised  jurisdiction  by  reason  of  any 
power  connected  with  intestates’  estates.  These,  like  wills, 
were  chiefly  within  the  jurisdiction  of  the  Ordinary,  long  after 
the  statutes  of  Elizabeth,  and  even  after  the  statute  of  Dis- 
tributions; (22  and  23  Car.  //.,  Cap.  10;  2 Bl.  Comm.  515,) 
which  only  qualified  the  power  of  that  officer.  This  statute 
was  demanded  as  one  of  the  reformations  on  the  Restoration  of 
Charles  II. ; it  being  claimed  that  a general  statute,  regulating 
the  distribution  of  the  estates  of  intestates  was  needed,  to  ob- 
viate the  difficulties  arising  from  the  existing  abuses,  which 
universally  prevailed  prior  to  that  time.  For  prior  to  the 
statutes  regulating  distributions, -all  the  goods  of  the  intestate 
went  to  the  Ordinary,  except  in  counties  or  cities  where  cus- 
toms to  the  contrary  existed  ; and  he  could  dispose  of  them  as 
he  chose,  in  pious  uses,  excluding  even  the  relatives  of  the  de- 
ceased. This  was  the  general  rule,  as  late  as  after  the  reign  of 
Henry  YIII. ; the  statute  of  Westminster  Second,  having  only 
provided  that  the  debts  of  the  intestate  should  be  paid.  The 
Ordinary  received  them,  either  in  his  own  right,  representing 
the  Church,  or  in  the  right  of  the  Crown,  having  such  absolute 
control  over,  or  property  in  them,  that  he  could  dispose  of  them 
for  pious  uses,  even  as  against  the  immediate  relatives  of  the 
deceased.  I refer  for  authority  on  this  point  to  a case  in  Plow- 
den  ( Graysbrook  vs.  Fox,  Plowd .,  277,  280,  decided  7 Eliz.  A. 
D.  1565,  see  also  4 Reeve's  Eng.  Law , 82-3,)  which  states  the  rule 
and  the  ground  on  which  it  prevailed  at  that  particular  time. 


44 


<cIf  a man  died  intestate,  the  Ordinary  should  have  had  his 
goods  to  dispose  of  in  pious  uses  ; for  when  he  died  intestate 
and  had  not  committed  his  goods  to  any  person  to  dispose  of, 
the  law  adjudged  the  Ordinary  the  most  proper  person  to  have 
the  disposition  of  them.  For  it  was  to  be  presumed  that  the 
Ordinary , who  had  the  care  of  his  soul  in  his  lifetime , would 
he  the  fittest  to  ham  the  care  and  disposal  of  his  goods  in  pious 
uses  after  his  death” 

Indeed,  the  rule  originally  was  said  to  be,  that  on  one  dying 
intestate,  all  his  assets  went  to  the  Crown  to  be  disposed  of,  as 
parens  patriae , and  that  this  right  being  granted  to  the  Ordin- 
ary was  the  origin  of  his  jurisdiction.  I confess  I do  not  think 
so  myself,  but  some  of  the  books  say  so.  ( ILenslce’s  Case , 9 Rep, 
38  ; Jacob’s  Law  Diet . “ Execution’’  1.)  My  own  belief  is,  that 
at  an  early  period,  even  as  against  the  Crown,  the  Ordinary 
had  the  disposition  of  the  goods — at  any  rate  there  was  for  a 
long  time  a question,  whether  the  Ordinary  could  be  compelled 
to  make  any  distribution,  even  in  payment  of  the  debts  of  the 
intestate,  prior  to  the  statute  referred  to.  The  contrary  was 
not  settled  until  that  statute  was  passed  in  1670.  (Jacob’s  Law 
Diet.,  “ Executor ” 8 ; Godolphin’s  Orphan’s  Legacy , Chap,  32, 
pp.  253-4,  3 d Ed .,  A.  D.  1685.) 

The  jurisdiction  of  the  Ecclesiastical  Courts  being,  however, 
in  some  cases  defective  as  to  creditors , they  found  it  necessary 
in  some  instances  to  resort  to  Chancery,  where  the  accounts  of 
the  executor  or  administrator  could  be  contested,  and  distri- 
bution decreed.  These  cases  began  in  the  reign  of  Edward  VI., 
(A.  D.  1547,)  but  the  jurisdiction  was  not  considered  settled 
until  1598,  being  the  40th  year  of  the  reign  of  Elizabeth. 
(Spence  Eg.  Jur.  of  Ch’y , 580,  Cary  R.  11.)  The  rule  in 
the  Court  of  the  Ordinary  was,  that  the  oath  of  the  executor  to 
his  accounts  was  conclusive  ; whereas  the  Chancery  rule  al- 
lowed his  statement  to  be  contested  and  his  accounts  to  be  fal- 
sified; as  in  the  modern  practice  of  surcharge  and  falsification. 


45 


A year  after  the  first  statute  of  charitable  uses  was  passed, 
and  three  years  before  the  present  statute  of  charitable  uses 
was  adopted  in  its  place,  the  same  rule  prevailed  as  to  the  next 
of  kin,  the  Chancery,  down  to  a comparatively  late  period,  hes- 
itating and  refusing  to  entertain  a bill  in  their  behalf ; and  this 
although  the  office  of  executor  was  treated  as  a trust.  [Spence 
Eq.  Jur.  of  Chiy,  588 ; Tothill  if.,  81.) 

I maintain  further  that  the  Court  of  Chancery  did  not,  prior 
to  the  time  of  Elizabeth,  exercise  jurisdiction  over  charitable 
uses  or  trusts,  ad  pias  causas , upon  information,  at  the  suit  of 
the  Crown,  as  it  unquestionably  did  afterwards.  {Spence  Eq. 
Jar.  of  Ch?y-i  585.)  This  practice,  when  it  came  into  general 
use,  prevailed  only  when  there  was  no  trustee  and  the  trust 
was  indefinite;  as,  to  the  poor,  generally;  or  when  the  trustee 
violated  his  trust,  and  attempted  to  impair  or  misappropriate 
the  fund  of  which  he  was  the  custodian.  The  application  was 
then  made  at  the  instance  of  some  person,  on  behalf  of  the  King 
as  parens patrice — usually  by  the  Attorney  General,  although  in 
some  cases  it  might  be  made  by  a person  other  than  the  Attor- 
ney General. 

There  is  no  such  claim  made  by  the  Attorney  General  in  the 
present  case.  Ilis  answer,  (at folio  53  of  the  Case ,)  states  that 
the  People  whom  he  represents 

“ — are  strangers  to  all  and  singular  the  matters  and  things  in 
said  complaint  contained,  and  cannot  admit  or  deny  the  same, 
and  they  leave  the  said  complainants  to  make  such  proof  there- 
of as  they  may  be  advised.” 

And  then  they  “submit  their  rights  to  the  Court  to  make 
such  order  and  decree  as  shall  be  agreeable  to  equity.”  Ho  de- 
mand or  assertion  of  any  interest  in  the  State.  Ho  claim  of  any 
right  in  the  State  to  appoint  as  parens  patriae / but  instead  of 
this  an  absolute  disclaimer  of  all  right  to  interfere  in  the  con- 
troversy, or  the  subject  matter  of  it. 


46 


Now,  the  application  by  the  Crown  was  clearly  as  a matter 
of  prerogative  and  substantially  an  assertion  of  the  doctrine, 
that  the  goods  of  persons  dying  intestate  or  not  well  disposed  of, 
belonged  to  the  Crown,  who  could  appoint  them  as  it  saw  fit. 
But  there  is  no  pretence  for  such  a jurisdiction  in  this  State, 
and  I am  therefore  spared  the  necessity  of  showing,  as  I think 
I can,  that  it  did  not  exist  in  England  prior  to  the  Statute  of 
Elizabeth  so  as  to  uphold  bequests  to  charities  void  at  common 
law,  for  in  definiteness  or  for  want  of  a competent  trustee.  I 
refer  the  Court  to  the  opinion  of  Judge  Selden  (1  Am.  Law  Leg ., 
546-7,  14  N.  Y.  R.,  387),  and  to  that  of  Judge  Denio  in  the 
case  of  Williams  (4  Seld.  7?.,  548).  I will  ask  your  Honors  to 
note  also  the  cases  of  Atfy  Gen.  v.  Glegg  (1  Atk.  R.,  356) ; 
Atfy  Gen.  v.  Jennis  (Id.,  355) ; and  I cite  also  Highmore  on 
Mortmain , 237,  and  1 Daniel  Chancery  Practice,  7 and  8.  The 
case  of  Atfy  Gen.  v.  Compton  (1  Young  dc  Coll.,  417),  is  a 
modern  case  against  the  exercise  of  such  jurisdiction. 

Again,  I assert  that  the  Court  of  Chancery  did  not  exercise 
jurisdiction  of  trusts  for  charities  or  oyer  charitable  uses 
prior  to  the  Statutes  of  Elizabeth,  except  in  cases  where  gifts 
of  personal  estate  were  made  by  act  inter  vivos  to  persons 
capable  of  taking  for  definite  charitable  uses  or  purposes  / or 
where  lands  or  the  use  of  lands  were  by  will  or  deed  directed 
to  be  applied  for  the  like  purposes  / and  only  then  under  its 
general  powers  to  enforce  the  performance  of  trusts,  in  like 
manner  as  private  trusts,  and  between  persons  competent  to  sue. 
I refer  to  Spence  on  the  Eguitable  Jurisdiction  of  Chancery,  at 
page  588,  and  to  the  Calendars  there  cited  by  him. 

Now,  these  were  suits  by  original  bill  only,  between  parties 
claiming  an  interest  in  a specific  charity,  and  competent  to  sue 
and  assert  their  title.  Mr.  Binney  in  his  argument  in  the 
Girard  Will  Case , contends  for  no  more,  and  refers  to  no  case 
earlier  than  in  1459  (37^4  Ilenry  VI.),  and  this  was  not  a con- 


47 


tested  one.  Let  me  refer  for  a few  moments  to  Mr.  Binney*s 
arguments.  His  third  proposition  is  {Girard  Will  Case, p.  108), 

“ The  defendants  are  entitled  upon  general  principles,  and  by 
the  constitution  of  a Court  of  Equity,  to  have  this  valid  trust 
protected  in  this  Court,  whatever  may  he  the  defects  of  the  le- 
gal estate.  I do  not  at  present  say , that  in  the  case  of  charitable 
uses , this  was  so  settled  before  the  43  d Elizabeth 

Thus,  one  who  has  given  the  most  elaborate  examination 
probably  of  any  man  living,  to  the  whole  subject  of  charitable 
uses,  does  not  claim  that  such  was  the  jurisdiction  of  the  Court 
of  Chancery  prior  to  the  Statute  of  43d  Elizabeth.  He  goes 
on  then  to  examine  the  cases  to  show  that  generally  where 
«a  trust  is  valid,  it  is  a fundamental  principle  of  equity,  and 
has  been  so  for  ages,  that  the  trust  shall  be  protected  and 
enforced  by  a Court  of  Equity.  It  would  occupy  too  much 
time  to  go  over  them  all,  but  none  of  the  cases  cited  by  him 
sustain  a bequest,  general  and  indefinite  in  its  character,  or 
made  to  a person  incompetent  to  take,  prior  to  the  Statutes  of 
Elizabeth.  And  as  will  be  seen  by  reference  to  the  Calendars 
which  he  cites,  the  suits  are  all  by  the  beneficiaries  or  other 
persons  having  an  interest,  capable  of  protection,  against  the 
trustee.  The  effort  was  made  by  him  to  show  that  the  decree 
in  Elmer  v.  Scott , {Choice  Cases  in  Chancery , 155  ; Girard 
Will  Case , 126,)  was  made  in  the  24th  Elizabeth,  before  the 
statute  of  Charitable  Uses,  upon  ordinary  and  judicial  equity 
in  Chancery ; thus  showing  that  Chancery  must  have  had  some 
general  jurisdiction  over  charitable  uses  prior  to  the  Statute  of 
Elizabeth.  The  case  referred  to  is  this— 

“ One  Symons,  an  alderman  of  Winchester,  sold  certain  land 
to  Sir  Thomas  Fleming,  now  Lord  Chief  Justice,  then  recorder 
of  that  town,  and  this  was  upon  confidence  to  perform  a chari- 
table use,  which  the  said  Symons  declared  by  his  last  will , that 


48 


Sir  Thomas  Fleming  should  perform.  The  bargain  was  never 
enrolled;  and  yet  the  Lord  Chancellor  decreed  that  the  heir 
should  sell  the  land,  to  be  disposed  according  to  the  limitation 
of  the  use.” 

ISTow  here ; there  was  a competent  trustee,  Sir  Thomas  Fleming 
and  there  is  nothing  to  show  that  the  trust  was  vague  or  in- 
definite. I mention  this  case  for  the  purpose  of  showing  that 
every  one  of  the  authorites  cited  by  Mr.  Binney  should  be  cri- 
tically examined  with  reference  to  the  character  of  the  trust,  and 
the  language  of  the  Court  in  passing  upon  it. 

He  says  with  Sir  Francis  Moore,  that  this  decision  was 

“ — before  the  statute  of  Elizabeth  of  Charitable  Uses,  and 
this  decree  was  made  upon  ordinary  and  judicial  equity  in 
Chancery.” 

But  the  question  is  not  whether  the  Court  did  not  in  some  in- 
stances exercise  jurisdiction  over  trusts  for  charities,  but  wheth- 
er it  sustained  those  which  were  so  vague  and  indefinite  as  to 
be  Void  at  law,  and  where  no  competent  trustee  was  appointed, 
or  any  other  equivalent  provision  made  for  enforcing  them,  in- 
depently  of  the  statute  of  Elizabeth. 

Your  Flonors  will  see  by  looking  into  Bridgman's  edition  of 
Duke , and  comparing  it  with  the  original,  that  some  of  the  cases 
cited  by  Mr.  Binney  as  showing  the  existence  of  the  jurisdic- 
tion prior  to  43d  Elizabeth,  are  erroneously  stated  in  point  of 
time,  and  that  the  trusts  were  definite,  and  that  there  was  a com- 
petent trustee  in  each  instance.  Among  others  he  mentions 
Elmeley  Lovett  and  Brattlington  Sussex , as  before  37  Elizabeth 
{Bridgman's  Duke  359  ; Duke  32-3) ; but  there  is  nothing  in 
the  original  Duke  to  show  that  these  cases  were  decided  at  so 
early  a period.  On  the  contrary,  the  presumption  is  against  it, 
and  that  they  were  adjudged  long  after  the  statute  ; and  as  to 
the  last  one,  it  is  clear  that  it  was  a proceeding  by  inquisition 


4 9 


under  the  statute  of  Elizabeth.  They  are  reported  in  the  ori- 
ginal Duke  under  the  head  of  u Decrees,”  which  Bridgman 
changes  to  “ Adjudged  cases,”  omitting  the  time  which  immedi- 
ately follows  in  the  original  edition,  thus  “ 5 Caroli  Primi  Bo- 
tulo jprimo .”  Then  follow  three  cases,  two  of  which  were  pro- 
ceedings by  commission  under  the  statute,  and  the  first  case 
cited,  thus  : 

“ Elmeley  Lovett  in  Com.,  Sussex.  Lands  given  by  several 
persons  to  a parish,,  for  the  use  of  the  poor,  repair  of  the  church, 
and  other  charitable  uses  to  be  done  in  the  parish,  decreed  and 
confirmed.” 

That  this  was  also  a proceeding  under  the  statute,  is  evident 
from  its  being  stated  to  be  in  the  county  {in  cornitatu)  of  Sussex ; 
a suit  in  equity  was  never  thus  distinguished.  Besides,  the 
lands  were  given  to  the  parish— a competent  trustee,  and  the 
charitable  uses  were  defined. 

The  other  case  is  thus  stated : 

u Brattlington  in  Sussex.” 

“ An  inscription  upon  the  donor’s  tomb-stone  declaring  the 
donor’s  gift  to  a charitable  use  was  found,  in  haec  verba.  And 
a decree  thereupon  accordingly ; and  is  a very  good  president.” 

This  was  also  a proceeding  under  the  statute,  as  is  clear 
from  the  word  u found,”  which  properly  distinguishes  the  find- 
ing of  the  trust  by  the  Commissioners  and  jury,  but  was  never 
applied  to  any  proceeding  in  a Court  of  Chancery.  Besides, 
this  gift  was  clearly  not  enforceable  at  common  law ; as  an  in- 
scription upon  a tomb-stone  can  hardly  be  imputed  to  the  sleeper 
beneath  it,  as  his  own  act  and  deed.  What  the  charitable  use 
was,  does  not  appear,  and  it  is  therefore  no  proof  that  an  indefi- 
nite trust,  or  one  without  a trustee,  was  sustained. 

In  the  original  edition  of  Duke , two  other  cases  only,  imme- 
diately follow  that  last  cited  ; and  they  were  both  before  Com- 
7 


50 


missioners  under  tlie  statute  43d  Elizabeth.  They  are  separa* 
ted  from  the  other  cases  in  Bridgman’s  Duke  (p.  633),  and  thus 
the  exact  chronology  of  all  of  them  is  confounded.  The  ear- 
liest of  these  two,  ( Crouch  vs.  Citizens  of  Worcester Duke  33, 
Bridgmans  Duke  633,)  came  up  on  appeal  from  the  Commis- 
sioners, before  Lord  Keeper  Coventry,  in  1626,  a quarter  of  a 
century  after  the  statute  of  Elizabeth. 

Mr.  Binney  also  cites  Howard’s  Case  as  Anno  40  Elizabeth 
[Duke  141,  Bridgman’ s 136)  , but  this  was  after  the  statute  39 
Elizabeth,  and  was,  doubtless,  in  a proceeding  upon  it ; a3  it 
compelled  the  performance  of  a charitable  use  imposed  by  a 
husband  in  his  will  upon  the  executors  and  administrators  of  his 
wife — a devise  clearly  void  at  common  law  and  so  stated  in  the 
report.  Nothing  but  the  supposed  efficacy  of  the  statute  could 
have  compelled  the  creation  as  well  as  the  performance  of  a 
trust  by  the  representatives  of  the  wife,  against  her  will  and 
theirs. 

He  also  cites  Throgmorton  and  Gray’s  Case , 41  Elizabeth 
{Duke  137,  Bridgman’ s Duke  131) ; but  this  was  also  after  the 
statute  39  Elizabeth,  and  there  is  nothing  to  show  whether  it 
was  a proceeding  in  Chancery  or  not.  Indeed,  no  such  case  is 
to  be  found  in  the  Chancery  Calendars,  although  I have  made 
diligent  search  for  it. 

Kensen’s  Case  is  also  cited  as  in  41  Elizabeth  ( Bridgman’s 
Duke  361)  ; and  it  is  there  stated,  that  it  was  in  Chancery , but 
no  such  thing  is  found  in  the  original  edition  of  Duke  (p.  80), 
the  only  place  where  the  case  is  mentioned,  and  I know  of  no 
authority  for  the  statement.  And  it  decides  nothing  upon  this 
subject,  as  it  was  resolved  only,  “ that  a copyhold  may  be  charged 
or  given  to  a charitable  use,”  and  was  probably  a proceeding 
under  the  39  Elizabeth.  No  such  case  is  found  in  the  calendars. 

Baggs  vs.  & ktmpner,  43d  Elizabeth  ( Tothill  120)  is  also  cited, 
but  the  case  is  imperfectly  reported.  It  is  found  with  more 


51 


particularity  in  1 Calendars  in  Ch'y  (p.  96,  No.  49),  and  appears 
to  liave  been  a bill  filed  to  establish  the  charitable  uses  of  a 
tenement  called  the  “ old  Pole,”  and  lands  thereto  belonging, 
in  Harlow,  conveyed  tempore  Henry  VIII.  to  feoffees  in  trust, 
for  the  poor  of  the  parish  of  Harlow,  and  the  plaintiffs  were  the 
feoffees  in  trust  for  the  parish.  Thus  there  were  competent 
trustees  and  a clear  and  definite  trust,  which  they  sought  to  pro- 
tect and  enforce. 

The  case  of  The  Mayor  of  Heading  vs.  Lane*  43  Elizabeth, 
which  Mr.  Binney  states  is  perhaps  on  the  dividing  line,”  is 
reported  in  Bridgman's  Duke  (361)  as  in  “ 1601  Garde f but  in 
the  original  Duke  there  is  nothing  of  the  kind,  and  it  does  not 
appear  whence  Mr.  Bridgman  derives  his  authority  for  stating 
That  it  was  in  Chancery.  It  may  have  been  there  on  appeal 
from  the  Commissioners  of  Charitable  Uses,  and  this  is  infera- 
ble from  the  language  of  the  report  which  is : 

“ a devise  w7as  made  to  poor  people  maintained  in  the  hos- 
pital of  St.  Lawrence,  in  Heading,  for  ever ; exception  was 
taken,”  &c. 

The  only  mode  of  raising  the  question  in  Chancery  on  ap- 
peal from  the  decree  of  the  Commissioners  was  by  exception  ; 
and  that  was  probably  done  here.  This  view  is  strengthened 
by  the  fact  that  no  such  case  is  found  in  the  Chancery  Calen- 
dars. Mr.  Binney  refers  to  Atty.  Gen.  v.  Master  of  Brentwood 
School  (1  Myl  dc  Keene , 3 16)  as  showing  the  exercise  of  juris- 
diction by  Chancery  over  a charitable  use  in  1570  (13  Eliza- 
beth) and  establishing  one  void  at  law  before  the  statute  43 
Elizabeth,  for  wTant  of  corporate  capacity  to  take  the  lands. 
But,  on  examination  of  that  case  {pp.  385,  389,)  it  will  be 
seen  that  the  grant  was  only  void  in  part  and  was  valid  as  to 
two-thirds  of  the  land  held  in  capite , and  that  the  decree  was 
in  fact  made  upon  a compromise  ; that  the  plaintiff  was  cornpe- 

library 

UNIVERSITY  or 


52 


tent  to  sue,  and  the  heir  at  law  acceded  to  the  wish  of  his  an- 
cestor as  to  the  whole  of  the  lands,  and  assented  to  a decree  to 
convey  accordingly. 

This  case  is  also  found  in  the  Chancery  Calendars  ( Yol . 1,  p. 
81,  No.  54),  and  appears  to  have  been  a bill  to  “ establish  dona- 
tions,” filed  by  “Thomas  Parker  and  others,  in  behalf  of 
themselves  and  other  inhabitants  of  the  town  of  Brentwood, 
Essex,”  and  the  lands  were  granted  in  aid  of  a former  grant  of 
lands  by  royal  license,  for  the  establishment  of  a free  grammar 
school  in  that  town  and  for  other  purposes.  There  was,  there- 
fore, in  this  case  also,  a legal  and  definite  trust,  a competent 
trustee  (which  was  an  incorporated  grammar  school),  and  the 
suit  was  brought  by  persons  interested  in  the  due  execution  of 
the  trust. 

Without  going  into  all  the  other  cases  noticed  by  Mr,  Bin- 
ney  at  length,  I may  be  permitted  briefly  to  notice  one  or  two 
more. 

In  Babington  v.  Gull , cited  by  him  from  1 Cal.  in  Ch'y 
LYI.  as  having  been  decided  one  hundred  years  before  the 
statute  of  Elizabeth  ( Girard  Will  Case , jp.  129)  the  complaint 
was  that  the  plaintiff’s  mother  had  placed  600  marks  in  the 
hands  of  the  defendant  for  the  purpose  of  founding  a chantry,  of 
which  the  plaintiff  and  his  heirs  were  to  be  the  patrons.  On 
looking  into  the  bill  it  will  be  found  that  it  was  filed  by  Bob' 
ington  himself  as  patron  of  the  chantry  to  compel  its  estab- 
lishment under  a royal  license  which  had  been  granted,  but 
which  the  defendant  refused  to  execute. 

So,  in  Wakering  v.  Bayle , (1  Cal.  in  CKy , I VII)  a bill 
filed  to  compel  the  defendant,  a feoffee  in  trust,  to  make  an  es- 
tate in  lands  to  the  Hospital  of  St.  Bartholomew,  to  find  a priest 
to  sing  perpetually,  &c.,  and  to  office  in  a chapel  made  at  the 
cost  of  one  of  the  feoffors.  The  plaintiff  was  Master  of  the 
Hospital,  and  sued  in  its  behalf , and  the  answer  admitted  the 
feoffment  and  trust. 


53 


Lyon  cb  Wife  v.  LLewe  cb  Kemp , also  cited  by  Mr.  Binney 
(from  2 Gal . m XLIV.)  as  of  the  reign  of  Edward  IV., 
was  a bill  by  the  executors  of  the  feoffor,  who  had  by  will  de- 
clared the  uses  of  a feoffment  of  the  defendants  in  trust,  to  find 
a priest  for  a particular  church,  and  making  an  aisle  and  porch 
therein,  the  mending  of  an  highway  and  the  marriage  of  five 
poor  maidens.  The  suit  was  against  the  feoffee,  who  was  the 
trustee,  for  aliening  the  trust  fund.  Here  there  was  a valid 
trust,  a competent  trustee  and  plaintiffs  authorized  to  protect 
the  trust  property. 

Baggs  v.  Sompney,  also  cited,  is  the  same  as  Baggsand  others 
v.  Sumpner , already  mentioned,  where  the  plaintiffs  sued  in 
trust  for  the  parish  ; and  although  Mr.  Binney  does  not  notice 
and  may  not  have  known  it,  it  is  the  same  case  reported  in 
Tothill  ( page  120),  which  he  had  previously  cited  for  another 
purpose. 

In  Buttlell  and  Purchas  v.  Fitche , the  plaintiffs  sued  as 
church-wardens , and  the  trust  was  for  repairing  the  parish  church 
of  Lyndsell,  and  Mr.  Binney  observes,  after  citing  the  case,  “Ho 
trustees,  and  complainants  not  a corporation  to  hold  lands”; 
but  there  is  no  evidence  of  this  in  the  Calendars  ( Vol.  1,  p.  96) 
and  I am  at  a loss  to  know  whence  he  derives  his  authority  for 
this  conclusion.  It  is  entirely  clear  that  the  church-wardens 
were  competent  trustees  of  the  fund. 

In  Blenkinsopp  cb  Salkeld  v.  Aronder sonne , the  trust  was  of 
“ an  annuity  of  £8.  for  certain  paupers  and  a schoolmaster  in 
the  parish  of  Burch.”  (1  Gal.  in  Ch.  101.)  Mr.  Binney  re- 
marks at  the  foot  of  his  citation  “ no  trustees.”  Why,  the  plain- 
tiffs sued  in  an  official  capacity — one  of  them  is  described  as 
“ clerk” — “ clericalis” — and  they  were  undoubtedly  the  benefi- 
ciaries under  the  trust,  and  the  defendants  were  the  claimants 
under  the  creator  of  the  trust.  The  same  objections  may  be 
made  upon  the  next  three  cases.  Booking  Parish  v.  F-ytche  cb 


54 


Goodwin , Church-wardens  { vol . 1,  134).  Barington  Parish  v. 
Tgchner  dc  College , {vol.  1,  141).  Careton  and  others  v.  Blythe 
{Id.  159).  In  each  of  these  the  parish  was  the  trustee  ; and  in 
two  of  them  the  trust  was  for  the  parish  poor,  and  the  parish 
which  assented  to  the  trust  was  the  plaintiff.  So  Christ  Church 
vicar  and  Chur ch-war dens  within  Newgate , v.  The  Parish  of 
All  Saints , {Cirard  Will  Case , 131)  was  the  case  of  a legacy  of 
£ per  annum  claimed  by  both  parishes.  Mr.  Binney  says 
there  were  u no  trustees,”  “ and  apparently  an  indefinite  char- 
ity.” There  is  nothing  said  about  it  in  the  Calendars  {vol.  l,p. 
218).  Again  {on  page  132)  Fairford  v.  Jenldns  and  others, 
inhabitants  of  the  manor  of  Oldsenth  (1  Cal.  in.  Ch.  291),  is  the 
same  remark,  but  nothing  is  said  about  it  in  the  Calendar.  So 
in  Gillingham  v.  Edward  and  others  {Cal.  CFy  p.  376),  and  in 
Goodson  and  others  v.  Mind  ay  and  others  {vol.  1,  378).  These 
remarks  are  not  warranted  by  the  Calendars.  In  the  first  two 
cases  the  parishes  were  the  trustees,  and  there  is  no  statement 
in  the  one  last  cited  that  “ the  trustees  were  unknown.”  So  at 
page  135,  By  car  dee  and  others  for  themselves  and  the  inhabi- 
tants of  Bodborough , {vol.  2,  p.  203)  v.  Payne  and  others , 

u Bill  to  protect  a charitable  donation  * * * * * of  certain 
lands  which  in  the  time  of  Henry  YI.  were  given  to  the  church 
and  parishes  and  inhabitants  of  Bodborough,  for  the  perform- 
ance of  divine  service  in  a chapel  of  ease  to  said  parish,  but 
which  defendants  claim  as  having  been  forfeited  to  the  Crown, 
being  given  for  superstitious  uses .”  ( Vol.  2 ,p.  30.) 

Here  there  was  a competent  trustee,  and  the  only  claim  of 
invalidity  was,  that  the  use  was  superstitious.  So  in  The  In- 
habitants of  Thorplangton  v.  Jarvyes  {vol.  3,  169),  the  statement 
that  it  was  an  “ indefinite  charity,”  is  an  inference  only,  and  is 
not  warranted  by  anything  stated  in  the  Calendar. 

And  so  in  regard  to  all  the  cases  cited  by  him.  In  the  very 
sources  from  which  he  quotes.  I do  not  find  anything  showing 


55 


that  there  was  not  a definite  trust,  and  that  there  were  not  trusteed 
for  the  fund,  having  a legal  or  equitable  interest;  either  in  its 
proper  application,  or  in  superintending  its  appropriation  to  the 
objects  to  which  it  was  devoted ; or  as  beneficiaries  under  it. 
The  terms  of  the  various  trusts  are  not  attempted  to  be  given 
in  the  Calendars.  The  general  obj  ect  of  the  bills  is  stated  in 
brief  terms,  in  connection  with  the  names  of  the  plaintiffs,  and 
of  the  defendants,  and  this  is  all.  For  aught  that  appears,  every 
one  of  the  charitable  uses  may  have  been  definite  and  certain. 
There  is  not  a single  case  of  an  information  prior  to  the  time  of 
Elizabeth  to  be  found  in  the  Calendars.  I have  examined  almost 
every  case  and  find  that  most  of  them  were  brought  by  parties 
having  some  interest  in  or  control  over  the  trust  or  charity,  and 
legally  competent  to  appear  in  Court  and  litigate  for  iuT protec- 
tion and  application  to  the  use  to  which  it  had  been  devoted.  I 
invite  attention  to  the  numerous  cases  cited  by  Mr.  Binney,  in 
verification  of  a remark  made  by  one  of  the  Judges  of  this 
Court,  that 

“ All  the  elaborate  research  which  has  been  given  to  this 
subject  has  failed  to  prove  that  the  Court  of  Chancery,  prior  to 
the  statute  of  Elizabeth,  ever  assumed  to  establish  a bequest, 
however  meritorious  or  clear  its  object,  if  made  to  no  one  in  par- 
ticular, or  to  a person  or  body  incompetent  in  law  to  take.  If 
any  of  the  fifty  cases  cited  from  the  report  of  the  Becord  Com- 
missioners of  England  are  of  that  character,  the  description  of 
those  cases  given  in  a note  to  Vidal  et  al.  v.  Girard's  Executors , 
(1  Howard's  S.  C.  P.  155,)  fails  to  show  it”  (Pr.  Selden , Jus- 
tice of  the  Supreme  Court , in  Chittenden  v.  Chittenden , 1 Am. 
Law  Peg.  545.) 

These  cases,  and  those  earlier  than  the  time  of  Elizabeth, 
may  be  dismissed  with  the  remark  fitly  made  in  the  preface  to 
the  first  volume  of  the  Calendars  in  which  they  are  published  : 

“ From  those  proceedings  it  appears  that  the  chief  business 


56 


of*  the  Court  of  Chancery  in  tho3e  early  times  did  not  arise  from 
the  introduction  of  the  uses  of  land,  according  to  the  opinion  of 
most  writers  on  the  subject;  very  few  instances  of  application 
to  the  Chancellor  on  such  grounds  occurring  among  the  pro- 
ceedings in  Chancery  during  the  first  four  or  five  reigns  after 
the  equitable  jurisdiction  seems  to  have  been  fully  established.” 

Even  after  the  statutes  of  Uses  and  Wills,  it  was  held  that, 
where  a feoffment  or  devise  was  made  to  a person  having  ca- 
pacity to  take  to  a charitable  use,  though  indefinite  as  to  objects ; 
as  for  the  poor  of  a particular  place,  the  feoffment  or  devise 
was  good  at  law.  Whatever  jusisdiction  chancery  had  exercis- 
ed in  such  cases  seems  to  have  been  suspended,  and  the  parties 
claiming  that  the  estate  was  divested  if  the  use  upon  which  it 
was  held  was  not  performed,  or  that  the  trust  was  invaled, 
brought  an  assize,  or  other  proper  real  action  and  “ made  out 
their  case  as  well  as  they  could  at  law ; ” as  was  said  by  one  of 
your  Honors  following  Lord  Loughborough,  in  the  case  of  Owens 
vs.  The  Miss.  Soc.  M.  Ch.  ( 4 Kern , 393-4.  See  Spence  Eq. 
Jur.  of  CKy  589  ; Atty  Gen.  vs.  Bowyer , 3 Yesey , 714,  726.) 
Mr,  Spence  says  : 

“ It  seems,  however,  that  no  bill  could  have  been  sustained  to 
establish  a charity  which  was  void  at  law , for  want  of  a suffi- 
cient devisee,  prior  to  the  Statute  43d  Elizabeth.” 

And  he  cites  the  opinion  of  Lord  Nottingham,  then  Lord 
Keeper  of  the  Privy  Seal,  in  the  anonymous  case  reported  in 
Finch , (1  Ch.:  Cases  267 ; 27  Car  II.  A.  D.  16S7.  See  Shel- 
ford  on  Mortmain , 277,  note.)  There  one  Prat  devised  his 
houses  to  St.  John’s  College,  being  tenant  in  capite , and  the 
corporation  misnamed,  which  was  a void  devise  to  pass  the 
lands,  and  so  on  former  proceedings  certified  to  by  all  the  judges. 
The  Lord  Keeper  notwithstanding,  decreed  it  a good  appoint- 
ment for  a charitable  use  within  the  Statute  43d  Elizabeth.  It 
was  then  objected  that  if  so,  the  process  and  method  appointed 


57 


by  the  statute  ought  to  be  had,  viz.,  a commission  and  inquisi- 
tion and  decree  by  commissioners,  and  so  to  come  at  last  to  a 
final  decree  by  the  Lord  Chancellor,  but  not  to  sue  by  original 
bill,  as  in  the  case.  But  the  Lord  Keeper  decreed  the  charity, 
u though  before  the  statute,  no  such  decree  could  have  been 
made.” 

Judge  Denio. — Is  there  a preamble  to  that  statute? 

Mr.  Noyes. — -There  is  a preamble  to  that  statute,  and  I have 
it  here  in  the  original  Duke. 

Now  the  case  I have  just  cited  proves  that  the  Statute  of 
Elizabeth  did  introduce  a new  set  of  principles  for  the  adminis- 
tration of  charitable  uses;  and  that  one  of  its  objects  was  to 
give  what  was  supposed  would  prove  a less  dilatory  and  expen- 
sive mode  of  proceeding;  and  the  other  to  sustain  trusts  for 
charities,  which  without  its  aid  would  have  been  void. 

For  if  the  remedy  in  Chancery  was  as  perfect  before  the  stat- 
ute as  it  afterwards  became  with  its  aid,  why  pass  it  at  all?  Its 
practical  working  was  never  very  well,  and  it  was  ultimately 
abandoned  for  that  reason,  although  never  repealed.  There  has 
been  no  information  filed  under  it  since  1760,  and  it  was  retain- 
ed for  the  purpose  of  upholding  charities  that  could  not  be 
maintained  without  it,  but  was  given  up  as  a mode  of  proceed- 
ing. (, Shelf ord  on  Mortmain , 278-9  and  notes.  Tucker , </.,  in 
G allego’s  ETrs  vs.  Atty.  Gen.,  3 Leigh  R.,  470.)  The  imme- 
diate necessity  for  the  Statute  grew  out  of  the  condition  of  the 
law  in  regard  to  superstitious  uses  ; one  of  its  main  designs 
being  to  declare  by  a positive  enactment  what  uses  were  not  of 
that  character,  as  well  as  to  reform  abuses  in  them.  ( Shelford 
on  Mortmain , 89  to  103.  Seepp.  95,  99.) 

Another  necessity  was  to  furnish  rules  to  supply  the  place  of 
the  Ecclesiastical  law  in  regard  to  pious  uses,  not  superstitious, 
8 


58 


which  had  been  abandoned  at  the  Reformation,  and  which  was 
not  applicable  to  -the  existing  state  of  things  ; the  effect  being, 
that  the  rules  thereafter  regulating  such  uses  would  emanate 
from  the  Crown,  and  not  from  the  Roman  Civil  law,  combined 
with  the  Ecclesiastical ; both  of  which  previously  existed  under 
papal  authority. 

Let  me  refer  to  that  Statute  for  a moment.  The  Statute  of 
39th  Elizabeth  did  not  enumerate  the  uses  which  were  charit- 
able. It  was  not  specific.  The  Court  will  see  by  reference  to 
Duke  {Ed.  of  1670,  y>.  62,)  that  the  Judges  had  a consultation 
on  that  subject  ; proceeding,  as  they  were  accustomed  to  do  in 
criminal  cases,  by  deciding  the  case  upon  particular  points  in 
the  absence  of  and  without  hearing  the  parties  interested.  {Sir 
John  Kelynge's  D.,p.  7.)  Duke  says,  “Egerton,  Popham,  An- 
derson, and  Cooke  (Coke),  Attorney  General,  resolved  these 
questions  upon  the  said  statute,”  and  then  follow  resolutions  as 
of  44  Elizabeth,  commencing  in  this  way  : 

“That  the  bishops  of  the  dioceses,  if  there  be  any,  at  the  time 
of  the  sealing  of  the  commission,  ought  by  the  express  words  of 
the  said  statute  to  be  named  as  commissioners,  or  otherwise  the 
commission  is  void.”  &c. 

The  report  seems  to  have  been  taken  from  Baron  Wild's 
manuscript,  and  resolutions  of  a similar  character,  in  some  re- 
spects, are  found  in  Moore's  Deports,  (559,)  where  it  appears  they 
were  adopted  in  41  Elizabeth,  and  they  undoubtedly  led  to  the 
repeal  of  the  Statute  of  39  Elizabeth  and  the  passage  of  that  of 
43  Elizabeth,  because  of  the  defects  pointed  out  in  the  former. 
They  differ  materially  from  those  in  Duke , and  are  translated 
thus  : 

“Rote,  that  on  St.  Simon’s  and  St.  Jude’s  day,  in  the  year 
41  Elizabeth,  I,  with  Cook,  Attorney  General,  by  order  of  Eger- 
ton, Keeper  of  the  Great  Seal,  applied  to  the  two  Chief  Justices 


59 


Popham  and  Anderson,  for  their  decision  on  several  points 
under  the  Statute  of  39  Elizabeth,  cap.  VI.,  which  authorizes 
commissions  to  redress  deceits  and  breaches  of  trust  of  lands 
aud  effects  bestowed  for  charitable  uses.  And  the  said  Chief 
Justices  and  Attorney  decided  on  these  points — 

Fisrt. — That  although  the  bishop  of  the  diocese  is  one  of  these 
commissioners  by  the  express  words  of  the  act,  still  it  is  not 
necessary  that  he  should  be  present  at  the  execution  of  the  com- 
mission ; but  if  the  commission  be  directed  to  him  and  several 
others,  giving  to  them  all  and  to  several  of  them  authority  as  to 
five  or  four,  those  five  or  four  may  proceed  without  the  bishop  ; 
still  if  the  commission  be  not  directed  to  the  bishop,  all  is  void. 

Second . — That  if  the  commission  be  directed  to  a vacant  see, 
that  need  not  be  the  metropolitan  because  the  bishop  of  the 
1 diocese  is  not  named,  but  a commission  then  issued  without 
naming  any  bishop  is  good  ; and  as  a bishop  may  be  created 
before  the  execution  of  the  commission,  this  will  not  take  away 
the  force  of  the  commission,  but  the  commissioners  will  proceed 
notwithstanding. 

Third . — If  the  commissioners  decree  a lease  or  feoffment  to 
be  void,  it  is  void  in  interest  and  estate.  And  if  the  Chancellor 
or  Keeper  of  the  Seal  afterwards  decree  the  estate  to  be  good, 
this  is  again  good  in  interest,  but  it  seems,  that  the  Chancellor 
cannot  make  any  decree , unless  the  former  decree  of  the  commis- 
sioners be  contrary  to  aquity. 

Fourth.  — That  where  a lease  is  made  in  fraud  of  charitable 
uses,  and  is  afterwards  assigned  to  one  who  had  no  notice  of  the 
fraud,  for  a good  and  valuable  consideration  : still  the  commis- 
sioners have  power  to  decree  the  assignment  void  as  well  as  the 
original  lease. 

Fifth. — That  the  commissioners  may  decree  the  mesne  profits 
which  have  been  witlield  for  a long  time  back,  to  be  repaid  by 
the  party,  his  executors  or  administrators,  who  received  them 
for  these  purposes  and  misapplied  them — -just  as  well  as  they 
may  order  for  the  time  to  come. 

Sixth. — That  the  word  ‘ given 5 in  the  proviso  for  the  erec- 
tion of  hospitals,  &c.,  in  towns  corporate,  extends  to  a gift  after 
the  statute,  as  well  as  to  gifts  before  the  statute. 


60 


Seventh. — That  the  commissioners  cannot  by  decree  establish 
a corporation  of  church-wardens  or  others  for  a charitable  use, 
although  they  may  decree  land  to  a body  politic,  capable,  with- 
out danger  of  mortmain,  whether  the  lands  be  held  iri  capite  or 
by  no  one,  because  the  Queen  is  bound  by  the  statute  on  this 
point.  And  they  may  establish  lands  in  natural  persons  and 
their  heirs  to  continue  charitable  use.-. 

Eighth . — That  the  commissioners  have  power  to  reform  the 
abuses  of  such  corporations  situate  without  corporate  towns,  or 
to  add  land  or  make  orders  for  those  who  are  in  the  same  con- 
dition and  whom  Parliament  by  private  acts  incorporated  for 
charitable  uses,  in  all  cases  where  their  private  acts  did  not 
provide  any  special  course  or  form. 

But  note  that  after  this  decision  the  said  Chief  Justices,  in  con- 
ference with  other  Judges,  changed  their  opinion  on  this  point, 
that  the  commissioners  could  not  decree  the  lease  or  estate  void 
which  came  to  a person  without  notice,  and  for  a good  conside- 
ration. And  thus  they  certified  their  opinions  in  Chancery  this 
term.” 

Chief  Justice  Comstock. — That  is  under  the  39th  Elizabeth  ? 

Mk.  Noyes. — Yes,  sir. 

Chief  Justice  Comstock. — Do  the  two  statutes  differ? 

Mr.  Noyes. — They  do,  in  many  respects,  but  chiefly  in  this, 
that  the  last  enumerates  the  charities  that  are  validated  by  it. 
The  Statute  of  39th  Elizabeth  was  repealed  by  43d  Elizabeth, 
Cap.  IX.  ( Gibson’s  Codex , 1114.)  That  of  43d  Elizabeth,  Cap. 
1Y.  is  entitled — 

“ An  Act  to  redress  the  mis-einployment  of  lands,  goods,  and 
stocks  of  mone}r,  heretofore  given  to  charitable  uses.” 

After  reciting  that — 

“ Whereas,  lands,  tenements,”  &c.,  u have  been  heretofore 


61 


given,  limited,  appointed,  and  assigned,  as  well  by  the  Queen’s 
most  Excellent  Majesty,  and  her  most  Noble  Progenitors,  as  by 
sundry  other- well  disposed  persons;  some  for  relief  of  aged,” 
&c., 

then  follows  a long  list  of  uses  which  are  deemed  charitable. 
On  page  3 of  Duke  (ed.  of  1676)  is  the  provision  of  the  statute 
in  reference  to  the  jurisdiction  of  the  Ordinary,  to  which  I have 
adverted  : 

“ Provided  also,  and  be  it  enacted  by  the  authority  aforesaid, 
that  neither  this  act,  nor  anything  therein  contained,  shall  be 
any  way  prejudicial  or  hurtful  to  the  jurisdiction  of  the  Ordi- 
nary, but  that  he  may  lawfully,  in  every  cause,  execute  and  per- 
form the  same,  as  though  this  act  had  never  been  had  or  made.” 

And  this  was  full  seventy  years  before  the  Statute  of  Distri- 
butions— the  Ordinary  having  jurisdiction,  as  already  stated, 
over  trusts  and  of  assets  and  property  devoted  to  pious  uses  by 
will  or  distributable  for  such  uses  in  cases  of  intestacy. 

Whether  the  purposes  of  the  framers  of  the  act  were  such  as 
I have  imputed  or  not,  the  adjudged  cases  show  that  the  statute 
performed  these  objects  ; and  that  in  interpreting  it,  and  by  force 
of  it  alone,  the  commissioners  and  the  Court  of  Chancery  adopt- 
ed most  of  the  rules  regulating  gifts  to  pious  uses  which  had 
prevailed  in  the  Ecclesiastical  Courts,  and  held  those  good 
which  at  common  law  were  void.  {See  Opinion  of  Selden , 
in  Id  N.  Y if.,  399.)  I say,  therefore,  that  it  was  adjudged  to 
have  introduced  a new  set  of  principles  in  the  administration  of 
charitable  uses,  as  well  by  commissioners  under  the  statute  as 
upon  original  bills  in  Chancery,  and  relieved  such  uses  from  the 
stringent  rules  of  the  common  law.  And  I submit  that  this  is 
demonstrated  by  the  authorities  to  which  I shall  now  call  the 
attention  of  the  Court. 

I refer  first  to  Nelson's  Lex  Testamentaria  (ed.  of  1724),  at 


62 


page  137.  Pie  was  the  author  of  the  Chancery  Reports,  and  of 
many  other  works  of  considerable  merit,  and  was  a laborious 
and  voluminous  writer.  This  is  the  second  edition,  and  I think 
that  a book  published  at  that  period  by  one  familiar  with  the 
then  existing  state  of  the  law,  may  well  be  regarded  as  crystal- 
izing  the  rule  as  it  was  then  understood,  with  substantial  ac- 
curacy. 

Now,  he  says  : 

“ Where  lands,  rents,  goods,  or  moneys  are  given  or  devised 
to  any  of  the  purposes  following,  it  is  accompted  a gift  or  devise 
to  a charitable  use  (naming  those  in  the  Statute  of  Elizabeth),  and 
the  use  shall  be  good,  where  the  donor  or  testator  had  a capacity 
to  give  or  devise,  and  was  entitled  to  such  an  estate  as  he  bad 
though  the  conveyance  is  defective. 

1.  Either  in  reference  to  the  party,  as  by  misnaming  him,  or 
not  well  naming  him. 

2.  In  the  execution  of  the  estate,  as  where  there  is  no  livery 
and  seisin  to  a feoffment ; no  attornment  to  a grant  of  a rever- 
sion ; no  surrender  to  the  uses  of  the  will  where  a copy  hold  is 
devised;  or  a defective  recovery  by  a tenant  in  tail,  who  de- 
vised the  estate  tail  to  a charitable  use. 

3.  Where  the  will  itself  is  void  in  law. 

For  in  all  these  and  the  like  cases,  the  Statute  43d  Elizabeth 
ch.  4,  supplies  the  defects,  and  though  they  cannot  be  called 
legal  gifts,  yet  they  are  good  limitations  and  appointments  of 
the  charity,  which  are  the  very  words  of  the  statute.” 

This  is  also  substantially  affirmed  in  1 Burns’  Ecclesiastical 
Law  (by  Phillimore ),  p.'  317  ( a ),  and  the  same  view  is  there 
taken  of  the  statute ; that  it  makes  wills  good,  which  were  in- 
valid before,  and  prevented  the  heir  and  next  of  kin  from  suc- 
ceeding. 

Let  me  refer  to  some  of  the  cases  cited  by  Nelson  (p.  140). 
One  is,  that  of  Damas  (Moore  S82,  Duke  72,  Bridgman? s Duke 


63 


362),  which  came  up  in  1615,  fourteen  years  after  the  Statute  of 
43d  Elizabeth. 

u A devise  to  a charity  is  good,  notwithstanding  the  will  is 
void  in  law;  as  where  a feme  covert  was  entitled  to  a debt  as 
administratrix  to  her  former  husband,  and  devised  part  of  it  in 
charity  ; adjudged , that  though  the  will  was  void  in  law,  yet  it 
was.  a declaration  of  her  intent  within  the  statute : so  that  if 
there  were  assets  of  the  intestate’s  estate  or  of  her  own,  the 
charity  shall  be  supported.” 

Now,  this  was  a proceeding  under  the  Statute  of  Elizabeth. 
The  commissioners  held  the  charity  good,  and  on  appeal  Lord 
Chancellor  Ellesmere  said  : 

“Albeit  the  will  of  the  lady  were  void  at  law,  yet  it  was 
good ; yet  it  will  serve  for  a declaration  upon  the  statute  for 
charitable  nses,  so  that  if  there  be  assets  of  that  estate  or  of  his 
own  estate  that  is  to  execute  it,  the  use  shall  be  supported ; for 
the  goods  in  the  hands  of  the  administratrix  are  all  to  go  and  he 
employed  to  charitable  uses , and  hindred  and  children  can  have 
no  property  nor  preheminence  in  them , hut  under  the  charity  of 
the  Ordinary.  It  was  confest  that  when  the  decree  was  made  by 
the  commissioners  the  estate  would  have  born  it  and  there  was 
assets,  and  therefore  there  was  negligence  in  the  management 
of  the  estate.” 

“ Wherefore,”  the  report  concludes,  “ Damas  was  compelled 
to  pay  the  £400  to  the  charitable  use :”  And  this  was  many 
years  before  the  Statute  of  Distributions,  that  Damas  was  com- 
pelled to  pay  the  £400 — merely  by  force  of  the  Statute  of  Eliza- 
beth. 

Juege  Denio. — Do  I understand  you  to  say  that  this  case  of 
Damas  was  under  the  statute  ? 

Mr.  Noyes.  — Yes,  sir ; most  distinctly.  And  that  statute  was 
held  to  have  changed  the  rule  and  authorized  the  giving  of  the 


64 


personalty  and  effects  to  some  person  other  than  the  Ordinary, 
and  also  that  it  would  sustain  a charity  void  but  tor  that  statute. 
It  could  also  repeal,  and  in  many  cases  was  held  to  have  repeal- 
ed the  Statute  of  Wills  ( Boyle  on  Charities , 21),  or  any  other 
statute  conflicting  with  it,  and  to  change  the  common  law  rules 
of  succession.  It  is  clear  that  there  were  no  means  of  enforc- 
ing the  charity  except  under  that  statute,  else  the  ordinary 
remedy  by  bill  or  by  information  would  have  been  adopted. 
And  this  method  of  disposing  of  the  assets  took  the  place  of  the 
disposition  by  the  Ordinary  to  pious  uses,  to  the  extent  of 
what  was  necessary  to  supply  the  charity  ; and  this  is  ex- 
pressly given  as  the  reason,  showing  that  the  next  of  kin  had 
no  right  to  the  assets — except  from  the  charity  of  the  Ordinary. 

To  show  the  extent  to  which  the  rule  was  carried,  the  case  of 
AtVy  Gen.  v.  Syderfin  (1  Vern.,  224;  1 Eq.  Cas.  Ah .,  96,  pi.  8) 
may  be  cited,  which  came  up  in  1683,  a long  time  after  the  one 
already  referred  to.  In*  that  case  no  written  title  to  the  fund 
was  found,  nor  any  appointment  discovered,  which,  even  under 
the  Ecclesiastical  law,  would  have  carried  it  to  the  Ordinary,  or 
to  the  Crown  as  parens  patriae. 

There,  by  will,  a charge  of  £1000  was  made  on  a manor,  to  be 
applied  to  such  charitable  uses  as  the  testator  had  by  writing 
under  his  hand  formerly  directed,  but  no  such  writing  was  found. 
The  Attorney  General,  at  the  relation  of  the  Governors  of  Christ’s 
Hospital,  towards  which  the  ‘testator  was  alleged  to  have  ex- 
pressed “good  intentions,” — said  to  be  the  pavement  of  a place 
somewhat  warmer  than  most  men  desire, — filed  his  bill,  claim- 
ing that  the  money  should  be  applied  for  the  benefit  of  the 
“mathematical  boys”  of  that  institution;  the  King,  “in  whom 
the  application  of  the  charity  was,”  having  so  manifested  his 
pleasure.  The  defendant  answered  that  he  believed  the  direc- 
tion had  been  cancelled  and  revoked  ; for  after  making  the 
will,  the  testator  had  charged  several  sums  upon  the  land,  and 


65 


the  whole  estate  would  scarcely  amount  to  answer  all  the 
charges,  and  the  heir  would  he  disinherited  and  left  without 
provision.  The  Lord  Keeper  said  : 

“It  is  no  question  but  the  charity  being  general  and  indefi- 
nite {the  writing  being  not  to  be  found),  the  application  of  this 
money  is  now  in  the  King,  and  his  Majesty  having  declared  his 
pleasure,”  &c., 

he  thought  it  could  not  better  be  laid  out.  He  cited  Frier  vs. 
Peacock , {sub  nomine , Att'y  Gen.  v.  Mathews , 2 levinz , 167,) 
in  that  Court,  where  the  testator  had  given  several  charities  by 
his  will  and  devised  the  surplus  for  the  good  of  poor  people 
forever;  and  a bill  being  brought  for  the  benefit  of  Christ’s 
Hospital  by  the  King’s  direction,  it  was  so  decreed — although 
there  were  poor  kindred  of  the  testator  who  insisted  that  they 
were  within  the  equity  of  that  general  devise  to  a charity.  And 
yet  they  were  shamefully  excluded,  although  the  law  then  was 
that  any  such  devise,  except  to  a charity,  was  void  for  want  of 
a sufficient  description  of  the  objects  of  the  testator’s  bounty. 

This  appears  by  the  cases  of  Hazel  v.  Pumney  {cited  in  the 
note  to  1 Vern .,  226),  decided. in  1733,  which  held  that  a devise 
of  a particular  sum  “ to  the  nearest  and  poorest  of  my  re- 
lations” was  void,  because  “the  person  to  take  by  a will  should 
be  described  with  certainty,”  and  within  the  doctrine  of  this 
case,  the  others  just  cited  could  have  not  been  sustained  prior 
to  the  Statute  of  43d  Elizabeth  ; for  no  such  jurisdiction  by  bill 
was  exercised  before  that  time,  and  no  record  of  any  such  case 
is  found  ; that  statute,  though  not  directly  proceeded  upon, 
furnishing  the  analogy. and  being  the  foundation  of  the  legal 
right ; aided,  indeed,  bj7  the  exercise  of  the  prerogative  of  the 
Crown,  appointing  the  use  of  assets  which  had  no  specific  owner. 
It  also  embraced  an  exercise  of  the  rule  of  the  Ecclesiastical 
law  as  to  privileged  testaments ; in  that  law  non-cancellation 
9 


66 


being  presumed  even  against  the  face  of  the  testament  itself 
which  sliowetli  a cancellation.  The  non-cancellation  of  the  be- 
quest wTas  presumed  in  Atty.  Gen.  v.  Syderfin,  in  accordance 
with  this  rule. 

So  much  for  Nelson  and  the  cases  cited  by  him.  He  clearly 
shows,  from  all  his  authorities  down  to  the  last  one  cited  by  him, 
to  show  that  “ a devise  to  a chanty  was  good,  notwithstanding  the 
will  is  void  in  law  ” — that  the  Statute  of  Elizabeth  furnished 
the  rule  of  decision.  This  was  Rolfs  case  {Moore  888),  known 
also  as  “Collinsorfs to  which  I shall  again  refer.  (Nelson,  142.,) 

EText,  I call  the  attention  of  the  Court  to  Boyle  on  Charitable 
Uses , a writer  within  the  last  half  century.  He  takes  the  same 
view  of  the  Statute  of  Elizabeth  in  substance  as  Nelson  and 
Burns  ; for,  after  quoting  the  words  of  the  act,  he  says  (page 
18): 

“ These  we  find  to  be  breaches  of  trust  and  misemployment 
of  lands  and  other  property  4 theretofore  given,  limited,  and  ap- 
pointed or  assigned  to  or  for  any  of  the  charitable  and  godly  uses 
thereinbefore  rehearsed,’  and  certainly  the  student  would  be 
little  apt  to  imagine  that  anything  could  be  found  lurking  in 
these  words  which  might  tend  to  enlarge  the  power  of  disposi- 
tion over  real  estate  by  deed  or  will  with  respect  to  charitable 
objects,  or  rather,  which  might  take  from  and  deprive  the  heir 
in  favor  of  those  objects , and  enrich  them  solely  at  his  expense . 
By  a singular  perversion,  however,  of  grammatical  construction, 
it  was  held  that  the  words  ‘ limited  and  appointed,’  which  are 
in  fact  merely  descriptive  of  some  of  the  modes  whereby  prop- 
erty might  then,  as  now,  be  given  or  conveyed,  were  in  equity 
endowed  with  an  extraordinary  efficacy.  They  were  considered 
as  curing  all  such  defects  as  the  want  of  livery  of  seisin,  and 
attornment,  which  were  therefore  in  charity  cases  wholly  dis- 
pensed with.  It  sustained  a remainder  without  a particular 
estate  to  support  it.” 

I will  call  your  attention  to  the  case  which  he  cites  : Platt  v. 


67 


St.  John's  College , (. Duke , 77  ; Bridgman's  Duke , 379),  decided 
in  1638,  thirty-seven  years  after  the  Statute  of  43d  Elizabeth 
was  passed.  This  was  a bill  by  the  Master  and  Fellows  of  the 
College,  to  carry  into  effect  the  will  which  devised  the  lands  to 
them  by  a wrong  name,  after  a life  estate  to  the  wife,  for  u main- 
tenance of  the  scholars  there.55  Lord  Keeper  Coventry  said  : 

u Although  the  college  was  incorporated  by  another  name 
than  the  devise  was  to  them,  and  therefore  might  not  be  capable 
of  it,  yet  the  devise  is  good  to  them  by  the  said  statute : also,  if 
the  heir  avoid  the  estate  tail  against  the  wife,  at  law,  yet  the 
remainder  to  the  college  shall  remain  good  and  be  a remainder 
without  a particular  estate,  which  by  rules  of  law  cannot  be , but 
these  defects  in  cases  of  charitable  uses,  are  made  good  by  that 
statute,  by  a benign  and  favorable  interpretation  thereof  for 
maintenance  of  charity,  as  it  is  in  the  cases  upon  statutes  for 
piety  and  charity.55 

How  this  was  not  a proceeding  by  Commissioners  under  the 
statute,  and  yet  the  statute  gave  the  Court  all  its  authority  to 
disinherit  the  heir,  (who  had  entered  to  avoid,  and  at  law  was 
entitled  to  avoid  the  devise,)  and  to  confirm  a void  devise.  I 
say  further,  that  the  statute,  benevolently  construed  so  as  to 
disregard  all  settled  rules,  was  adopted  by  the  Court  of  Chancery 
as  furnishing  the  rules  by  which  all  charitable  devises  and  be- 
quests utterly  void  or  insufficient  for  want  of  certainty,  were  to 
be  upheld  in  equity.  And  hence  the  general  impression  and 
the  frequent  dicta — if  not  judicial  determinations — that  all  the 
powers  of  the  Court  of  Chancery  to  sustain  such  devises  and 
bequests,  were  derived  from  that  statute  ; which  was  an  embodi- 
ment in  effect,  of  all  the  rules  of  the  Papal  Ecclesiastical  law 
in  regard  to  privileged  testaments.  It  applied  to  gifts  to  chari* 
table  uses  not  deemed  superstitious,  after  the  Reformation  to- 
wards the  close  of  the  reign  of  Henry  VIII.,  and  separately 


68 


enumerated  in  the  first  section  of  that  act.  This  further  appears 
from  its  provisions,  some  of  which  I shall  . consider  for  a moment. 

In  the  first  place,  the  commission  to  inquire,  &c.,  was  issued 
“ to  the  Bishops  of  the  diocese  and  his  Chancellor,  and  to  other 
persons  of  good  and  sound  behavior.”  The  “jurisdiction  of  the 
Ordinary  or  the  power  of  the  Ordinary  ” was  expressly  reserved, 
so  that  “ he  may  carefully,  in  every  cause,  execute  and  perform 
the  same  as  though  this  act  had  never  been  had  or  made.”  In 
other  words,  the  commission  was  directed  to  the  Ordinary,  and 
to  these  “ other  persons  of  good  and  sound  behavior,”  was 
granted  a sort  of  superintending  jurisdiction  over  the  Ordinary 
wdio  usually  resided  in  the  place  where  the  charity  existed.  The 
decrees  were  only  to  stand  good  until  the  “same  shall  be  in- 
dorsed or  altered  by  the  Lord  Chancellor,  Lord  Keeper,  or 
Chancellor  of  the  county  palatine  of  Lancaster  within  this  same 
jurisdiction,  upon  complaint  of  the  party  grieved  to  be  made  to 
them.”  And  thus  the  power  of  the  Ordinary  as  distributor  of 
the  effects  of  deceased  persons,  subject  to  the  control  of  the 
Bjshops  and  of  the  King  ultimately,  was  expressly  reserved  ; so 
that,  in  cases  of  absolute  intestacy,  without  anything  which 
could  be  called,  under  the  equitable  interpretation  of  that  act, 
a “limitation  or  appointment,”  the  Ordinary  could  distribute 
the  assets  in  charity  at  his  pleasure,  and  the  King  under  his 
prerogative,  could  determine  to  what  charity  they  should  be  de- 
voted, to  the  exclusion  of  the  meritorious  poor  relations  of  the 
intestate,  as  was  done  in  the  cases  I have  just  cited. 

Kow,  a little  more  of  Boyle . He  says,  (p.  19)  that  as  regards 
testamentary  dispensations — < 

“ — it  was  declared  that  a devise  of  copyhold  lands  to  the  use 
of  a charity  was  good  as  an  appointement,  without  a surrender.” 

And  he  cites  Bluett's  Case  (Moore,  890  ; 3 Ch.  Bep .,  220; 
Duke,  II ; Bridgman’s  Duke,  366)  decided  in  1618  ; Chard  v. 


69 


Opie  ( Finch  B.,  75  ; 1 Pq.  Cas.  Abr.  u Copyhold  ” J?.  122,  pi. 
1,)  in  1673  ; Atty.  Gen.  v.  Baines  or  Barnes  (2  Yern 598  ; 3 
(7A.  i?.,  154 ; Prec.in  Chan.,  271)  in  1707 ; Tuffnell  v.  Pope, 
(2  AA  7?.,  37  ; 2 Barnadist  Ch.  B.,  9)  in  1740.  This  idea  of 
supplying  the  want  of  a surrender  began  after  and  had  its  origin 
in  the  Statute  of  Charitable  Uses.  To  show  this,  I shall  refer 
to  one  of  the  cases  cited,  Bumbold  v.  Bumbold , (3  Yesey,  69) 
where  Lord  Bosslyn  said  : 

“ I have  looked  into  Duke’s  Charitable  Uses.  It  is  clear  the 
idea  of  supplying  the  want  of  a surrender,  began  after  the 
Statute  of  Charitable  uses.” 

In  the  same  case  he  had  previously  said,  “ upon  commissions 
for  charitable  uses.” 

I need  not  stop  to  consider  all  the  cases  referred  to,  as  they 
fully  sustain  the  position  which  I maintain.  I ought,  perhaps, 
to  refer  to  two  of  them. 

Biveitfs  case  was  decided  in  a proceeding  upon  the  Statute  43d 
Elizabeth.  There 

“ A copyholder  of  land  in  fee  deviseth  the  same  to  a char- 
itable use,  (for  the  relief  of  Stow  market)  without  a surrender. 
The  commissioners  made  a decree  for  the  land,  and  upon 
the  appeal  the  decree  was  confirmed ; for  although  it  is  a 
void  devise  by  the  common  law,  yet  it  is  a good  limitation 
and  appointment  of  land  to  a charitable  use,  and  it  shall  bind 
the  heirs,  but  not  the  Lord  of  his  fineL 

The  case  of  Atty.  Gen.  v.  Andrews , (1  Yesey  Sen.,  225,)  de- 
cided in  1748,  where  Lord  Hardwicke,  alluding  to  the  cases 
which  regarded  the  Statute  of  Elizabeth  as  dispensing  with  the 
Statute  of  Wills  as  to  copyhold  estates,  devised  in  charity,  said  : 

a Perhaps  if  these  determinations  were  now  originally  to  be 
considered,  Courts  of  law  and  equity  would  not  have  gone  so 
far : and  it  7nay  be  wished  it  was  altered  ; as  it  is  subject  to  the 


70 


same  inconvenience  as  a devise  of  freehold  lands.  But  I can- 
not set  up  fanciful  distinctions  / nor  does  that  being  the  case 
of  a trust  make  any  difference.” 

In  regard  to  the  whole  of  this  class  of  cases,  I would  remark 
here,  that  the  Statute  43d  Elizabeth  in  all  modes  of  proceeding, 
whether  before  the  Commissioners  under  it,  by  bill  in  equit}^,  or 
by  information  at  the  suit  of  the  Attorney  General,  was  held  to 
have  made  a new  rule,  and  to  sustain  a charity  which  wTas  void 
at  common  law  for  the  want  of  some  indispensable  pre- requisite. 
JSTo  case  justifying  the  practice  before  the  statute,  was  pretended 
to  exist. 

Boyle  continues  : 

“ So  a devise  to  a corporation  for  charitable  uses  was  looked 
upon  in  the  same  light,  notwithstanding  devises  to  corporations 
were  expressly  excepted  out  of  the  Statute  of  Wills.  Such  a 
devise  could  not,  in  the  face  of  that  statute,  be  declared  good 
as  a will,  but  the  act  under  consideration  was  said  to  validate 
and  authorize  the  disposition  by  way  of  appointment  or  decla- 
ration of  trust.” 

For  this  he  cites,  and  I refer  to  Flood's  case  [Hobart,  130  ; 
Duke , 73  ; Bridgman's  Duke , 370 ; S.  C.  sub  nomine  DeLaycl's 
case , 1 Fq.  Cas.  Abr .,  95,  Ajpl.  0)  decided  in  1615,  where  the 
the  devise  was  to  the  wife  for  life ; and  after,  to  her  daughter  for 
life,  and  then  to  the  Principal,  Fellows,  and  Scholars  of  Jesus’ 
College,  Oxford,  to  found  a scholar  of  his  blood  there  ; and  it  was 
held  that  the  devise  was  void  as  against  the  Statute  of  Wills, 
which  did  not  allow  corporations  to  take  in  mortmain,  but  that 
“ it  was  within  the  relief  of  the  Statute  of  Charitable  Uses,  43d 
Elizabeth,  under  the  words  ‘limit’  and  ‘appoint.’”  That  the 
college  could  take  and  hold  as  against  the  ward  and  heir,  al- 
though colleges  were  expressly  exempted  from  that  statute ; that 
being  only  to  exempt  them  from  an  examination  by  Commission- 


71 


ers  under  the  statute,  “ but  not  to  restrain  gifts  made  to  them.” 
The  same  doctrine  was  held  in  The  King  v.  Newman , (1  Levinz , 
184). 

Now,  in  Flood’s  case , the  devise  was  good  in  form,  certain,  and 
capable  of  being  enforced  at  the  suit  of  the  trustees  of  the 
charity,  a valid  corporation.  It  was,  however,  void  when  made 
in  1571,  being  before  the  statute,  and  was  made  valid  by  a stat- 
ute passed  twenty  years  afterwards — perhaps  after  the  death  of 
the  testator  ; and  this  would  seem  to  be  so,  although  the  fact  is 
not  distinctly  stated. 

Judge  Denio.— If  any  statute  was  passed,  the  question  must 
have  arisen  upon  gifts  made  before,  to  affect  any  existing  dis- 
positions of  property? 

Me.  Noyes.' — Undoubtedly,  the  statute  was  regarded  as  retro- 
active. Chief  Justice  Wilmot , in  a case  which  I shall  pres- 
ently refer  to,  as  Bolt's,  also  reported  as  Collin  son's,  and  the  re- 
mark is  equally  applicable  here,  said  that  it  wTas  a case  of — 

“ A most  violent  retrospective  relation  to  make  a devise  void 
at  law,  a good  one  in  effect,  in  equity.”  ( Wilmot' s Opinions , 
p.  13.) 

Its  operation  was  to  divest  the  title  of  the  heir  to  whom  the 
land  had  descended,  before  the  Statute  43d  Elizabeth,  when  the 
will  was  void;  there-being  no  statute  nor  any  power  in  any 
Court  whatever,  to  remedy  the  defect  and  devest  his  title. 

Let  me  next  call  the  attention  of  the  Court  more  particularly 
to  Bolt's  or  Collinson's  case , already  mentioned.  {Hobart,  136  ; 
Duke , 73/  Moore  B,,  888.)  Collinson  devised  a house  to  his 
wife  for  life,  (15  Henry  YIIL,  1534),  and  after  death  to  feoffees, 
(as  he  called  them,)  to  keep  it  in  “ reparations  ” and  to  bestow 
the  rest  of  the  profits  on  the  reparation  of  highways  in  Eltham. 


72 


The  testator  and  his  wife  died  and  the  house  descended  to  Holt, 
an  infant.  The  report  in  Duke  shows  that  it  was  a proceeding 
under  the  Statute  43d  Elizabeth,  before  Commissioners  in  Kent, 
and  came  into  Chancery  upon  exceptions  to  their  inquisition 
put  in  by  Rolt.  Hobart  says  : 

“It  was  in  Chancery” — but  he  meant  that  it  was  there  on 
appeal,  as  it  would  properly  be  on  the  exceptions: 

“ — between  the  parishoners  of  Rolt  and  was  referred  by  the 
Court  to  me  ( Hobart ) and  Ta7ifieldi  and  we  resolved  clearly 
that  it  was  within  the  relief  of  the  statute  43  Elizabeth  ; for 
though  the  devise  was  utterly  void,  yet  it  was  within  the  words 
4 limited  and  appointed  to  charitable  uses otherwise  if  he 
were  an  infant,”  &c. 

Here  was  a devise  good  in  form  and  to  a corporation — the 
parish— for  the  use  of  highways.  There  was  also  all  the  re- 
quisite certainty  as  to  the  objects  of  the  trust,  and  a trustee 
who  litigated  in  his  own  name  for  the  “ parishioners,”  who  were 
parties  ; and  the  statute, — probably  passed  after  the  descent  cast 
— was  applied  retrospectively  to  remedy  the  defect.  That 
it  was  so  applied,  the  language  of  Chief  Justice  Wilmot , which 
I have  already  quoted,  declares  ; and  I refer  to  his  views  to 
complete  the  argument  upon  the  authority  of  that  case. 

Judge  Denio. — That  opinion  was  against  charity,  was  it 
not  ? 

Mr.  Hoyes. — Ho,  he  sustained  the  charity  in  question  there, 
but  many  of  his  views  were  in  conflict  with  the  extravagant 
doctrines  of  some  of  the  cases  decided  upon  the  statute,  43d 
Elizabeth. 

I will  now  consider  one  or  two  more  authorities  under  this 
branch  of  my  subject.  In  the  Mayor  of  Bristol  v.  I Y kitten, 
( Duke  81,  Bridgman' s Duke  377,)  there  was  a devise  of  money 


to  Bristol,  a municipal  corporation,  for  bestowal  amongst  poor 
people.  It  was  held  good  by  Lord  Keeper  Coventry  although 
Bristol  was  a corporation.  Here  there  was  a competent  trustee 
and  a valid  charity,  there  being  no  uncertainty  as  to  the  objects 
of  the  charity.  This  was  decided  in  1633.  Previous  to  that 
time,  and  in  1629,  Uillam's  Case  was  decided.  ( Duke  80, 
Bridgman's  Duke , 375.)  It  was  a devise  of  lands  to  a company 
of  leather  sellers  in  London  to  maintain  a charitable  use  there. 
Upon  a decree  by  the  Commissioners  (under  the  statute  43d 
Elizabeth)  to  settle  the  lands  upon  the  company,  and  exception 
taken,  that  b§ing  a corporation  they  wTere  excepted  out  of  the 
statute  of  Wills,  the  decree  was  affirmed,  u there  being  many 
precedents  for  it.”  This  was  a case  exactly  like  the  one  last 
before  cited — a good  devise  and  requisite  certainty. 

The  case  of  Att'y  Gen.  v.  Bowyer  (3  Yesey,  724),  decided  in 
1767,  which  your  Honors  will  find  to  be  the  first  case  in  Wil- 
mot's  Opinions,  under  the  name  of  the  Downing  College  Case , 
which  I have  already  cited,  is  to  the  same  effect ; holding  that 
a devise  to  trustees  to  found  a college  was  good  under  the 
statute  of  43d  Elizabeth,  provided  the  creation  of  the  college 
was  sanctioned  by  royal  license;  Porter's  Case , (1  Rep.  16, 
A.  D.  1584,)  and  Sutton's  Hospital  Case , (10  Id.  1,)  being 
chiefly  relied  on  to  sustain  the  charity. 

Let  me  again  refer  to  Boyle.  He  proceeds : 

“ And  in  the  somewhat  analagous  case  of  a devise  to  the 
churchwardens  of  a parish  to  a charitable  use,  the  disposition 
was  in  Chancery  deemed  to  be  good,  under  the  words  4 limit- 
ed and  appointed,’  in  the  Act.” 

In  connection  with  this,  he  refers  to  Pennyman  v.  Jenny , 
{Duke  82,  Bridgman's  Duke  374,)  decided  in  1626. 

“ Lands  were  given  to  churchwardens  of  a parish,  to  a charit- 
able use ; although  the  devise  loe  void  in  law  it  wras  decreed 
10 


good  in  chancery,  by  the  words,  “limited  and  appointed,” 
within  the  statute.” 

Also  to  the  anonymous  case  in  2d  Ventris  349,  decided  in 
1682. 

“ An  impropriator  devised  to  one  that  served  the  cure,  and 
to  all  that  should  serve  the  cure  after  him,  all  the  tithes  and 
other  profits,  &c.  Though  the  curate  wTas  unable  to  take  by 
this  devise  in  such  manner,  for  want  of  being  incorporate  and 
having  succession ; yet  my  Lord  Chancellor  Finch  decreed 
that  the  heir  of  the  devisee  should  be  seized  in  trust  for  the 
curate  for  the  time  being.” 

Both  these  cases  proceeded  strictly  upon  the  statute  of  43d 
Elizabeth,  and  without  its  aid  the  heir  would  have  taken.  It 
does  not  clearly  appear  whether  they  arose  upon  the  statutory 
proceeding  or  by  bill  in  equity. 

Boyle  says  further — 

“ — a devise  or  settlement  by  tenant  in  tail,  who  neither  levied 
a fine  nor  suffered  a recovery,  was  held  to  be  a good  appoint- 
ment under  this  statute  of  charitable  uses,  both  against  the 
issue  in  tail  and  the  remainder  man.” 

He  cites  Tay  v.  Slaughter , ( Prec . in  Chan.  16,)  decided  in 
1690,  to  which  case  I will  call  your  attention. 

“Tenant  in  tail  settles  land  for  a charity,  and  in  1652  a 
decree  was  made  by  the  Commissioners  of  charitable  uses  ap- 
plying these  lands  to  the  charity  ; then  the  estate  tail  is  spent 
and  Tay  who  was  the  remainder  man  in  fee  and  an  infant , 
put  in  exceptions  to  the  decree,  that  he  ought  not  to  bo  bound 
by  the  decree,  not  coming  in  under  the  tenant  in  tail.  But  all 
the  commissioners  held  that  all  appointments  of  a tenant  in  tail 
to  a charity,  are  by  the  statute  good  and  binding  against  the 
remainder  man,  as  well  as  against  the  issue  in  tail,  and  there- 
fore confirmed  the  decree  with  costs.” 


75 


Now  this  was  a proceeding  before  Commissioners,  under  the 
statute  of  43d  Elizabeth.  It  cut  off  an  infant’s  right  and  de- 
prived him  of  his  estate — it  destroyed  the  remainder — and  de- 
feated the  clear  intent  of  a deed  or  wrill  by  so  doing.  And  the 
founder  of  the  charity  was  enabled  to  settle  to  its  uses  a larger 
estate  than  he  had ; thus  giving  him  an  absolute,  when  he  was 
entitled  only  to  a limited  interest  in  the  land,  and  enabling 
him  to  devote  it  for  ever  to  the  charity. 

Another  authority  to  which  I may  here  with  propriety  refer, 
is  Attfy  Gen.  v.  Bye,  (2  Vernon  453  ; 1 Ey.  Gas.  Abr.  172,  fol. 
7,)  decided  in  1703  ; which  was  a devise  of  a charity  to  main- 
tain a school  master.  The  decision  of  the  Commissioners  sus- 
, tabling  the  charity,  was  affirmed  by  the  Lord  Keeper  on  ap- 
peal ; the  doctrine  held,  being,  that  a tenant  in  tail  may  devise 
lands  to  a charity  and  the  devise  shall  be  good,  though  there 
be  no  line  levied  or  recovery  suffered. 

In  Attiy  Gen.  v.  Burdett , (2  Vern.  755,)  in  1717,  although  it 
does  not  appear  how  the  question  arose  or  what  the  specific 
charity  was,  it  was  said  in  the  opinion  sustaining  it, 

“ — the  statute  of  charitable  uses  supplying  all  defects  of 
assurance,  where  the  donor  is  of  a capacity  to  dispose,  and  hath 
such  an  estate,  as  is  in  any  way  disposable  by  him,  whether  by 
line  or  common  recovery.’'5 

Boyle  says  further — • 

“But  even  this  is  not  all,  for  where  a person  seized  of  lands  in 
cajoite  as  tenant  in  tail,  devised  the  whole  of  such  lands,  giving 
to  one  an  estate  for  life,  and  a remainder  upon  that  estate  for  a 
charity,  the  determination  was  that  the  whole  lands,  though 
being  held  in  cajpite  only  two  parts  were  devisable,  passed  by 
the  will ; that  the  estate  tail  was  bound  by  the  devise  to  charit- 
able uses  ,*  that  the  particular  estate  could  not  take  effect,  but 
that  the  remainder  to  the  charity  was  good.” 


76 

The  position  thus  stated  was  cited  by  Lord  Rosslyn , in  Rum- 
bold  v.  Rumbold , (3  T^y,  70,)  to  which  I have  already  ad- 
verted, as  established  by  a case  in  Duke,  and  he  characterized 
it  as  “ a strange  determination,  that,  I think,  could  not  be  law 
now.” 

In  Flood's  Case , already  referred  to,  it  does  not  appear  from 
the  report  in  Hobart  (p.  136),  that  the  question  arose  as  to  lands 
in  cdpite , but  this  does  appear  from  the  other  two  reports.  (1 
Eg.  Gas.  Abr .,  95,  A.  6 ; Duke , 85  ; Bridgeman's  Duke , 372.) 
The  Judges  there  said  : 

c£  Also,  none  can  devise  their  lands  held  in  capite  to  any,  but 
must  leave  a third  part  to  descend,” 

But  still  they  certified  and  resolved  : 

“ — that  although  it  be  void  by  the  common  law,  yet  the  statute 
of  43d  Elizabeth,  for  charitable  uses,  doth  make  this  good  as  a 
limitation  or  appointment,  and  that  it  was  good  for  all  the  land." 

The  same  rule  did  not  apply  in  Lord  Montagud s Case , ( Duke 
78,  Bridgman's  Duke , 370,)  decided  in  1619  ; for  there  the 
testator  had  conveyed  two-thirds  of  the  land  held  in  capite  in 
his  lifetime,  and  the}  will  covered  only  the  remaining  one-third, 
and  so  the  Judges  resolved  that  the  will  was  void,  and  was  not 
aidedby  the  statute  43  Elizabeth,  of  charitable  uses;  on  the  in- 
stant of  his  death  the  land  descended  to  his  heir,  and  the  devisor 
having  disposed  of  two  parts  in  his  lifetime,  he  was  disabled  to 
devise  the  remaining  part.  Yet  if  he  had  not  made  the  con- 
veyance of  two-thirds  in  his  lifetime,  the  whole  would  have 
vested  in  the  charity. 

There  was  a similar  decision  to  that  in  Flood's  Case , in 
Christ's  Hospital  v.  Hawes  ( Duke , 84,  Bridgman's  Duke , 370, 
A.  D.  1620,)  before  the  Commissioners  of  the  Great  Seal.  It 
was  there  insisted,  “ that  the  devise,  covering  the  whole,  was 


77 


void  as  to  the  third  part,  which  he  could  not  devise “ Yet  it 
was  held  to  be  a good  limitation  and  appointment  within  the 
statute  43d  Elizabeth,  as  doth  well  enable  the  Commissioners 
for  charitable  uses  to  decree  the  whole,55  and  the  Commissioners 

{C  decreed  it  to  be  confirmed,  for  that  it  appeared  to  them  that 
it  was  the  true  intent  and  meaning  of  the  donor,  that  all  the 
lands  in  question  should  go  to  the  hospital.55 

Boyle  says,  the  ground  of  these  decisions 

“ appears  to  have  been  a supposed  discovery  of  intention  on  the 
part  of  the  Legislature  to  remedy  and  supply  all  defects  and 
omissions  in  point  of  form.  Wherever,  therefore,  a disposition 
was  purported  to  be  made  by  a person,  who  had  a legal  capacity 
to  give  in  any  way , the  intention  to  devote  the  subject  of  the 
gift  to  a charity,  however  improperly  executed,  was  laid  hold 
of  as  a foundation  for  supplying  every  imperfection  in  the  mode 
of  donation.  (Citing  Wilmotfs  Opinions , 12.)  It  was  con- 
sidered also,  as  respects  dispositions  of  a testamentary  character, 
that  the  act  of  Elizabeth  being  subsequent  in  point  of  date,  must 
be  held  to  have  superseded  and  repealed  the  Statute  of  Wills. 
This  would  have  been  a proper  determination  enough,  provided 
the  one  had  contained  an  enactment  of  a different  purport  from 
the  other,  in  which  case,  the  first,  though  not  expressly  repealed, 
must  yet  be  considered  to  have  been  so  ; but  here  the  Courts 
have  turned  words  of  mere  description  into  words  of  enact- 
ment, contrary  to  all  the  rules  of  construction,  and  the  obvious 
meaning  of  the  words  employed.’5 

And  on  page  22,  he  says  : 

“ Other  parts  also  of  the  act  have  been  tortured  in  a similar 
way.  Thus,  under  the  latter  branch  of  the  sixth  section,  which 
directs  that  recompense  shall  be  made  by  the  heirs  and  exe- 
cutors of  deceased  persons,  out  of  the  assets  come  to  their  hands 
and  which  is  plainly  intended  to  be  confined  to  those  cases  in 
which  there  may  have  been  frauds  or  breaches  of  trust,  it  used, 


7$ 


formerly,  to  be  considered,  that  charitable  bequests  were  pay- 
able out  of  equitable  assets,  not  only  before  any  other  legacies, 
but  even  before  debts / because  it  was  assets  in  equity,  which 
were  disposable  by  that  statute,  which  ordains  them  to  make 
recompense  ; and  the  equity  of  the  statute  wTas  held  to  be  above 
the  equity  of  the  chancery.’’ 

Citing  Duke  on  Charitable  Uses  (186),  being  the  last  page  of 
Sir  Francis  Moores  Heading  on  the  statute  {Bridgman’s  Duke , 
191,)  and  he  remarks,  finally,  that  this  rule  was  changed  by 
Lord  Chancellor  Cowper  and  others,  and  brought  down,  as  Lord 
Eldon  said,  “ to  something  like  common  sense.” 

I now  call  the  attention  of  the  Court  to  the  following  cases, 
where  the  bequest  or  devise  was  wholly  uncertain,  and  yet  held 
good  under  the  Statute  43d  Elizabeth  : 

Steward  v.  Jermyn , in  1598,  {Duke,  79,  Bridgman's  Duke , 
360,)  where  one  having  lands  and  goods,  appoints  by  his  will, 
that  the  same  shall  be  sold  to  maintain  a charitable  use,  but  did 
not  appoint  by  whom  the  sale  shall  be  made.  The  Lord  Keeper, 
on  appeal  to  him,  confirmed  a decree  for  a sale  by  one  J.  S., 
appointed  by  the  Commissioners,  and  the  proceeds  to  be  ap- 
plied to  the  charitable  use,  according  to  the  donors  wish. 

'Wingfield's  Case , in  1629  {Duke  80,  Bridgman's  Duke  374). 
Money  given  for  the  good  of  the  church  of  Dulk  ; held  a good 
gift,  notwithstanding  these  general  words. 

Cofife  v.  Webb,  in  1602  {Duke  80,  Bridgman's  Duke  361). 
Hunt  seized  in  fee  of  the  rectory  of  Haynes,  devised  the  same 
to  be  sold  and  the  money  to  be  distributed  unto  twenty  of  the 
poor  of  his  kindred  ; held  good,  although  it  did  not  appear  he 
had  any  “poor  kindred.” 

Fisher  v.  Ilill,  in  1612  {Duke  82,  Bridgeman's  Duke  484). 
Mr.  Bridgman,  probably  on  the  authority  of  Tothill , {p.  29) 
says  it  was  “ in  Chancery.”  Holds  that — 


79 


“ When  no  use  is  mentioned  or  directed  in  a deed,  it  shall  be 
decreed  to  the  use  of  the  poor,  although  the  feoffees  be  gentle- 
men living  out  of  the  town,  and  not  inhabitants  within  the 
town.” 

Judge  Denio.— Were  all  these  cases  decided  under  the  Stat- 
ute of  Elizabeth  ? 

Mr.  Noyes. — Many  of  them  expressly  appear  to  have  been, 
and  I have  no  doubt  they  all  were,  and  in  many  cases  an  instru- 
ment in  which  there  was  a plain  and  palpable  defect,  which 
rendered  it  wholly  void,  was  held  to  create  a valid  charitable 
use  by  virtue  of  that  statute.  I refer  to  Stoddard’s  case , in 
J605,  as  being  almost  precisely  like  the  one  now  before  the 
Court,  reported  by  Duke  (81,  Bridgman’s  Duke  373,)  and  Tot- 
hill  (93  ; ed.  <?/1820,^.  31) : 

i . 

44  Stoddard  devised  by  parcel  ( Tothill , £>.  31,  says  it  was  44  by 
parol”  and  the  mistake  is  obvious,)  a yearly  rent  of  £10  per 
annum  forever  out  of  his  house  called  the  4 Swan  with  100 
marks,5  ( Tothill  says  its  name  was  the  4 Swan  with  two  necks’) 
in  the  old  Jewry,  London,  for  the  maintenance  of  two  scholars 
in  Oxford  and  Cambridge;  and  willed  that  one,  Hugh,  the 
scrivener  should  put  it  into  writing,  wdiich  was  done  according- 
ly, and  this  being  found  by  inquisition  was  decreed,  and  the 
decree  affirmed  upon  appeal ; for  although  by  law,  a rent  can- 
not be  created  or  granted  without  a deed,  yet  this  nuncupative 
will  was  good  to  create  the  rent  to  a charitable  use,  by  the 
words  of  the  statute  4 a limitation  or  appointment  ;5  for  although 
it  be  not  a good  gift,  yet  it  is  a gobd  limitation  or  appointment.55 

Now  this  was  after  the  Statute  of  Wills  (32  Henry  YIII.),  the 
will  was  by  parol  or  without  due  execution  under  that  statute, 
and  yet  the  Statute  of'43d  Elizabeth  was  held  to  have  remedied 
the  defect.  If  the  devise  was  good,  it  wTas  certain — the  ob- 
jects were  certain— and  there  was  a proper  party  to  ask  relief 


80 


and  apply  for  the  protection  of  the  fund.  This  case,  however, 
was  overruled  one  hundred  years  afterwards  in  Atty.  Gen.  v. 
Barnes , (2  Vern.,  597,)  Lea  v.  Libb , ( Carthew , 35,  A.  P.  1888) 
Pigott  v.  Penrice  {Glib  Eg.  R .,  137,  A 1717,)  is  a similar 
case.  I refer  also  to  Atty.  Gen.  v.  Sawtell , in  1712,  (2  AiE, 
497,)  which  was  this  : 

“ Whether  copyhold  lands  surrendered  by  Sir  John  Fash  to 
the  use  of  his  will,  and  devised  by  him  to  a charity,  would  pass, 
as  the  testator  had  not  signed  the  last  sheets  nor  was  there  any 
witness  to  it.  A scrivener  had  orders  to  engross  it,  but  the  tes- 
tator being  in  extremis , the  rough  draft  consisting  of  eleven 
sheets  was  brought  to  him  and  he  signed  only  the  two  first,  hut 
died  before  he  could  sign  the  rest.  It  was  found  in  the  case 
that  the  testator  asked  before  he  signed  the  will,  whether  it  was 
according  to  his  directions,  and  the  scrivener  assured  him  it  was. 
The  Chancellor,  Lord  TIardwicke,  though  the  will  was  not 
signed  in  the  last  sheet  and  without  witnesses,  yet  held  it  to  be 
a good  appointment  of  the  copyhold  estate  for  the  charity  ac- 
cording to  the  Statute  43d  Elizabeth,  c.  4,  of  Charitable  Uses.” 

I ask  the  particular  attention  of  the  Court  to  the  case  of  Atty. 
Gen.  v.  Hickman  ( W.  Kelynge  R 34,y>Z.  24  ; 2 Eg.  Gas.  Abr ., 
Title  “ Charity ,”  Apt.  14;  Bridgman’s  Puke , 476)  decided  in 
1732,  as  a case  strikingly  like  the  present,  which  establishes 
that  although  a legacy  be  lapsed  in  law,  yet  it  shall  subsist  in 
equity  for  a charity  by  virtue  of  the  Statute  43d  Elizabeth  : 

“ An  information  was  exhibited  by  the  Attorney  General  for 
the  performance  of  a charity  given  b}T  a codicil  annexed  to  the 
testator’s  will,  by  which  he  devised  that  what  should  remain 
and  the  residue  of  his  estate  and  effects , be  given  tor  encourag- 
ing such  non-conforming  ministers  as  preach  God’s  word  in 
places  where  the  people  are  not  able  to  allow  them  sufficient 
and  suitable  maintenance,  and  for  the  encouraging  of  such  as 
are  designed  to  labor  in  God’s  vineyard  as  dissenters,  and  ap- 
points two  persons  to  have  the  appointment  and  disposal  of  the 


* 


81 


said  charity ; loth  of  which  persons  died  in  the  lifetime  of  the 
testator.” 

Two  questions  arose  : first,  whether  both  the  trustees  to  whom 
the  disposal  and  appointment  of  the  said  charity  were  given, 
dying  in  the  lifetime  of  the  testator,  this  charity  was  not  gone, 
and-  in  the  nature  of  a lapsed  legacy.  Lord  Chancellor  King 
said  : 

“ The  substance  of  the  charity  remains,  notwithstanding  the 
death  of  the  trustees  before  the  death  of  the  testator  ; and  though 
at  law  it  is  a lapsed  legacy , yet  in  equity  it  is  subsisting;  and 
here  is  a sufficient  certainty  of  the  testator’s  intention  to  revive 
it,  the  intention , therefore , of  the  party  is  sufficiently  manifested 
that  this  charity  should  continue , within  43d  Elizabeth,  cap.  4. 
It  has  been  held  that  if  the  tenant  in  tail  devise  a charity, 
though  no  recovery  is  suffered,  yet  that  it  shall  take  place  and 
be  effectual  as  an  appointment  under  43d  Elizabeth.” 

And  he  cited  the  principle  of  the  statute  as  interpreted  and  ap- 
plied in  the  cases  of  Atty.  Gen.  v.  Rye  (2  Vern.  453),  and  Same 
v.  Burdett  {Id .,  755),  and  he  does  not  contend  for  it  on  any 
other  ground  than  the  obligatory  force  of  the  statute. 

The  second  point  which  arose  there,  was  whether  this  was  a 
superstitious  use  within  1 Edward  I.,  cap.  14  ; “ non-conforming 
ministers”  and  u dissenters”  being  such  general  words,  as  that 
they  comprehend  any  persons  however  opposite  to  the  Church 
of  England.  In  regard  to  this  the  Lord  Chancellor  said  : 

“ This  cannot  be  a superstitious  use  within  the  statute,  but 
the  dissenters  here  meant  are  protestant  dissenters  acting  under 
the  Toleration  Act  (1  W.  & M.,  Ch.  18.)” 

And  he  decreed  the  residum  to  be  disposed  of  in  praesenti 
and  not  in  a perpetual  charity,  and  ordered  a scheme  to  be  laid 
before  him  for  that  purpose.  The  report  in  Eguity  Cases 
11 


82 


Abridged  (“  Charity ,”  A pi.  14th)  has  this  addition  as  part  of 
the  will. 

“ The  particular  method  how  to  dispose  of  it  I prescribe  not, 
1 leave  it  to  their  discretion , desiring  you  (B,  the  devisee)  to 
take  advice  of  C and  D.” 

In  that  respect  it  was  like  this  case  exactly.  Here,  as  there, 
it  embraced  real  and  personal  estate.  The  trust  was  personal 
depending  upon  the  discretion  of  the  trustees,  and  advice  of 
other  parties  was  to  be  taken.  There  was  also  a competent 
trustee — B,  the  devisee.  The  suit  was  brought  in  Chancery  by 
the  Attorney  General  as  the  representative  of  the  Crown  ; and 
yet  the  will  was  departed  from,  the  funds  distributed  at  once, 
and  a scheme  was  directed  and  adopted  in  order  to  do  this — 
something  entirely  foreign  to  the  whole  plan  of  the  will.  Hay 
more,  the  bequest  was  sustained  only  und  r the  Statute  of  43 d 
Elizabeth  / and  as  the  codicil  by  which  it  was  given  was  not 
witnessed  as  appears  by  the  report  in  Equity  Cases  Abridged ’, 
and  was  therefore  void  under  the  Statute  of  Frauds  within 
Dr.  Johnson’s  case  (2  Vern.,  597),  as  to  the  real  estate;  it  was  a 
plain  case  where  the  heir  was  disinherited,  solely  by  force  of 
that  statute.  Upon  this  general  subject,  the  potency  given  to 
the  statute,  I refer  to  what  Lord  Chief  Justice  Wilmot  sajs  in 
the  Downing  College  Case.  ( Opinions , pp . 11,  12,  13.) 

u But  then  comes  the  Statute  of  43d  Elizabeth,  with  such 
medicinal  qualities  in  it .” 

I think  that  is  an  important  quality  in  a statute. 

Mr.  Yan  Buren. — That  refers  to  dispensaries. 

Mr.  Hoyes. — “ as  to  heal  every  imperfection  in  a charitable 
disposition,  provided  the  party  had  a legal  capacity  to  give  at 
all.  * * * The  words  laid  hold  of  by 


83 


the  Judges  were  “ limited  and  appointed.”  If  there  was 
a gift  in  fact  by  a person  who  had  a legal  capacity  to  give  in 
any  way,  they  considered  that  intention,  improperly  executed, 
to  be  a foundation  for  supplying  any  imperfection  in  the  mode 
of  donation  ; and  that  the  Legislature  intended,  if  estates  were 
given  in  fact,  defects  in  form  were  not  to  be  attended  to,  and 
they  were  to  let  the  charity  take  place.” 

I also  refer  to  the  case  of  Attorney  General  Tancred  (1  Eden 
10,  Ambler  351,)  decided  in  1757.  Tancred  conveyed  part  of 
his  real  estate  in  default  of  issue,  to  charitable  uses,  defective 
because  made  to  certain  officers  of  a corporation  who  were  not 
capable  of  taking  in  succession,  and  not  to  the  corporate  body. 
On  the  hearing  of  the  case  it  was  objected  between  the  heirs 
and  those  entitled  to  the  charity  that  the  estate  was  given  to 
persons  incapable  of  taking  in  succession.  Lord  Keeper  Hen- 
ley said  : 

“But  the  constant  rule  of  the  Court  always  has  been,  where 
a person  has  a power  to  give,  and  makes  a defective  conveyance 
to  charitable  uses  to  supply  it  as  an  appointment,  as  in  Jesus ’ 
College , (Collinson’s)  Case , ( Hobart , 136.)  * * * 

The  only  doubt  is,  whether  the  Court  should  supply  the  defect 
for  the  beneft  of  the  charity  under  the  Statute  of  Elizabeth,  and 
1 take  the  uniform  rule  of  this  Court  before  and  after  the  Stat- 
ute of  Elizabeth  to  have  been,  that  where  the  uses  are  charitable 
and  the  person  has  in  himself  full  power  to  convey,  the  Court 
will  aid  a defective  conveyance  to  such  uses.” 

Such  was  undoubtedly  the  rule  after  the  statute,  but  I think 
I have  shown  that  it  was  not  the  rule  before.  I refer  to  one 
other  casejH&fy  Gen.  v.  Sedgwick  (1  Eden , 487),  decided  in  1760, 
where  an  attempt  was  made  to  compel  a devise  to  increase  a 
legacy  to  a charity,  an  amount  “ not  exceeding  £100,  being  left 
to  be  applied  in  his  discretion,”  and  he  applying  only  a portion 
of  that  sum.  Lord  Keeper  Henley  said  : 


84: 


“ It  is  true,  and  I am  sorry  for  it,  that  there  are  old  preced- 
ents in  this  Court,  where,  by  & perverse  and  mistaken  construc- 
tion of  the  Statute  of  Elizabeth,  this  Court  enabled  persons  to 
give  to  charities,  who  had  no  power  to  do  so  by  law ; and  it  is 
as  true  that  these  precedents  not  only  injured  private  families 
but  became  a public  nuisance,  which  called  upon  the  Legisla- 
ture to  interpose  and  stop  them.  But  I found  the  equity  of  this 
Court  liberal  and  impartial,  and  no  respecter  of  persons,  and 
please  God,  I will  leave  it  so.” 

I have  now  laid  before  the  Court  some  of  the  evidences  which 
have  guided  me  in  arriving  at  my  conclusions  in  this  case.  I 
have  examined  (hem  witli  care  and  stated  them  with  fidelity. 
In  my  judgment,  they  lead  only  to  one  result,  and  I submit  that 
the  principles  and  authorities  cited  establish,  that  general  and 
indefinite  trusts  for  charities,  such  as  are  sought  to  be  sustained 
in  this  case,  were  only  maintainable  in  England  by  virtue  of  the 
prerogative  of  the  Crown  and  the  statutes  39th  and  43d  Eliza- 
beth. There  is  no  case,  to  my  knowledge,  before  those  statutes, 
nor  any  warrant  except  that  given  by  them  or  claimed  as  the 
privilege  of  the  Crown,  for  sustaining  indefinite  trusts  for  chari- 
ties. I have  read  every  word  in  Duke , where  the  contrary 
doctrine  would  be  found  if  it  ever  existed,  and  do  not  find  any 
such  case  there.  And  further,  I assert;  that,  as  our  Court  of 
Chancery  possesses  only  the  ordinary  jurisdiction  of  Chancery 
over  trusts,  and  the  prerogative  of  the  Crown  cannot  be  exer- 
cised, and  the  Statute  43d  Elizabeth  does  not  exist  here,  the 
trust  for  a dispensary  now  under  consideration  is  void.  It  has 
only  been  incidently  said  in  this  Court  that  the  statute  did  not 
introduce  a new  rule.  Duke  shows  the  contrary,  and  Nelson  and 
Boyle  and  the  reported  cases  say  the  same  thing,  and  they  are  cer- 
tainly a weight  of  authority  thatis  overwhelming.  Doubtless  many 
of  the  adjudications  made  under  that  statute  would  never  be  made 
again.  They  were  unrighteous  as  well  as  “ perverse.”  But  they 
form  the  foundation  of  the  legal  edifice  of  England  as  to  charities, 


85 


and  must,  with  the  statutes  themselves,  be  rejected  as  contrary 
to  the  spirit  of  our  institutions  and  against  the  policy  of  our 
laws. 

In  regard  to  the  cypres  doctrine,  that  is  only  a branch  of  the 
Ecclesiastical  law,  dependant  originally  upon  the  prerogative  of 
the  Crown  for  its  existence  and  exercise.  It  was  administered, 
or  rather,  its  principles  applied,  in  Chancery,  only  under  the 
statutes  39th  and  43d  Elizabeth.  As  a head  of  equity  jurispru- 
dence it  had  no  existence  independently  of  them.  It  has  never 
been  adopted  by  us  as  applied  to  charities.  It  is  wholly  un- 
suited to  our  modes  of  procedure,  and  cannot  be  invoked  to  aid 
the  trust  in  question.  (Tudor's  Charitable  Trust  Act,  p.  63,  § 
66  ; Boyle  on  Charities , 147, 155  ; Shelf  or  d on  Mortmain,  601.) 

By  refering  to  Swinburne  (< on  Wills , ed.  1590,  p.  31, ) it  will 
be  seen,  that  the  doctrine  came  from  one  of  the  rules  as  to  pri- 
vileged testaments  : 

“ Another  privilege  is,  that  for  the  obtaining  of  anything  left 
conditional  ad pias  causas,  it  is  sufficient  the  condition  be  ac- 
complished by  other  means  than  according  to  the  precise  form 
of  the  condition.  Whereas  in  other  testaments  and  legacies,  it 
is  not  sufficient,  unless  the  condition  be  precisely  observed.” 

And  he  cites  Tiraquel  (De  prin  pice  causce,  ch.  837).  But 
this  point  need  not  be  pursued  further.  Judge  Denio  in  Wil- 
liams v.  Williams  (4  Selden,  548),  said  that  “ the  distribution 
of  powers  among  the  great  departments  of  the  government, 
which  is  a fundamental  doctrine  in  the  American  system, 
would  prohibit  the  Court  from  exercising  a power  so  purely 
discretionary.” 

Chief  Justice  Comstock.— I understand  the  gentleman  to 
have  admitted  that. 

Me.  Beynolds. — I do  not  propose  to  consider  the  cy-pres  doc- 


86 


trine,  but  shall  rely  on  the  cases  of  Moggridge  v.  Thackwell 
(6  Vesey,  83)  and  Williams  v.  Williams  (4  Selden , 525).  The 
former  case  I have  cited  to  show  the  deductions  of  Lord  Eldon , 
exhibiting  in  what  cases  the  Lord  Chancellor,  as  the  agent  of 
the  Crown,  and  in  what  the  Court  of  Chancery  disposed  of 
cases  of  public  charity. 

Mr.  Noyes. — I willingly  accept  the  gentleman’s  disclaimer. 

Mr.  Reynolds. — It  is  no  disclaimer.  It  is  an  explanation 
simply,  of  my  grounds.  If  you  find  such  a proposition  on  my 
points,  the  criticism  is  warrantable. 

Mr.  Noyes. — I would  simply  add  that  the  doctrine  itself  is 
now  greatly  modified  in  England,  and  that  if  a specific  object 
be  pointed  out,  as  the  building  of  a church,  or  giving  money  to 
the  inhabitants  of  particular  parishes,  it  must  be  effected  intoto , 
or  not  at  all ; and  if  it  fail  the  property  will  go  to  the  next  of 
kin  or  heirs  at  law.  ( Atty . Gen.  Bishop  of  Oxford , 1 Bro.  Ch. 
i?.,  141 ; same , Goulding , 2 Id .,  428). 

But  further  : The  executors — to  whom,  if  to  any  one,  the  testa- 
tor committed  the  exercise  of  the  large  discretion  which  alone 
could  establish  the  dispensary  and  effectuate  the  trusts — having 
renounced,  there  is  no  authorized  person  or  body  to  exercise  it 
in  their  stead  ; and  as  the  Court  has  no  jurisdiction  to  perform 
it,  it  cannot  authorize  its  performance  by  any  one  else.  Indeed, 
the  testator  did  not  intend  that  any  persons  other  than  the 
executors  should  exercise  it,  and  gave  no  power  of  substitution. 
On  this  point  the  learned  counsel  (Mr.  Reynolds),  cited  Coiik- 
lin  y.  Edgerton , (21  Wend . 430),  but  that  case  was  overruled 
in  Bogert  v.  Ilertell  (4  JBill,  492),  and  disapproved  by  Mr. 
Surrogate  Me  Yean  in  Andeson's  Case  (5  JY.  Y,  Leg , Obs ., 
303.)  And  in  reply  to  the  other  authorities  cited  by  the  coun- 
sel, and  which  as  I contend,  do  not  touch  the  point,  as  they  are 


87 


not  cases  where  a personal  trust  reposed  in  one  was  permitted 
to  be  transferred  to  and  performed  by  another,  after  it  had 
been  renounced  by  such  trustee,  I refer  also  for  the  true  rule  on 
the  subject  to  Lewin  on  Trusts , (262-6) ; Bradford  v.  Befurd , 
(2  Simons , 2d 4) ; Adams  v.  Clifton , (1  Buss.,  297) ; Matter  of 
Thornton , (2  Add.,  273) ; Attfy  Gen.  v.  Scott,  (1  Vesey  Sr.  413 ; 
Walter  v.  Manude,  (19  Yesey,  425) ; Matter  of  Stevenson,  (3 
Paige,  420);  Matter  of  Van  Wyck,  (1  Barb.  Ck.  R.,  565). 

I may  be  pardoned  here  for  reverting  to  the  force  of  the 
authority  of  Williams  v.  Williams,  to  say  a single  wTord  more 
about  it.  I do  not  for  a moment  suppose  that  the  doc- 
trine for  which  I am  contending  will  unsettle  any  point  of  law 
actually  adjudicated  in  that  case,  and  necessary  to  its  determi- 
nation. And  as  that  case  did  not  concern  real  property,  it  is 
not  necessarily  conclusive.  Even  if  it  should  be  deemed  in 
conflict  with  any  views  nowr  presented,  it  may  perhaps  be  re- 
viewed. 

The  cases  to  which  I have  already  called  the  attention  of  the 
Court  as  authorizing  a re-examination  of  a decision  once  made, 
( Millers . Emans , 19  N.  Y.  R , 384;  overruling  Pelletrean 
v.  Jackson,  11  Wend.,  10  ; Jackson  v.  Waldron,  13  Id.,  178, 
and  Edwards  Yarick,  in  the  Court  of  Errors  in  1846,)  are  in 
point  and  furnish  an  ample  justification  for  asking  a recon- 
sideration of  this  most  important  question.  There,  the  Court 
overruled  decisions  of  the  highest  Court  of  this  State,  one  of 
them  made  a quarter  of  a century  since,  and  in  doing  so,  in  my 
judgment,  has  returned  to  the  true  rule. 

The  other  cases  I also  cited  shew,  that  upon  principle, 
the  point  may  be  re-considered.  The  thing  chiefly  important 
in  the  administration  of  justice,  so  far  as  the  stream  of  authori- 
ties goes,  as  a general  rule,  is  that  there  should  be  sound 
doctrines  rather  than  unsound  cases.  The  rule  as  I take  it  to 
be,  is,  that  an  erroneous  case  should  not  be  followed  unless  it 


has  become  a rule  of  property,  and  incorporated  itself  with  the 
interests  and  usages  of  the  community.  To  deny  to  a Court  the 
power  of  correcting  an  error  in  its  decisions,  is  to  give  it  the 
capacity  of  repentence,  without  the  ability  to  amend. 

I have  referred  to  other  authorities — particularly  to  Plainer 
v.  Sherwood,  (6  Johns.  Ch.  R .,  118,)  where  Chancellor  Kent, 
(who  always  had  the  magnaminity  to  confess  his  mistakes),  re- 
tracted an  opinion  and  corrected  his  judgment  on  the  first 
opportunity.  His  remarks  I have  already  quoted,  and  they  are 
the  more  noticable,  as  in  overruling  himself,  he  also  overruled 
that  great  legal  luminary  Lord  Coke,  and  upon  a point  where 
the  profession  has  been  in  an  error  for  more  than  a century. 

Judge  Mason. — I do  not  see  any  propriety  in  this  Court 
changing  its  decisions  every  year.  If  there  is  any  lack  in  this 
Court  it  is  in  not  adhering  to  its  own  decisions.  I only  speak 
these  things  of  what  was  legitimately  decided  in  the  case  of 
Williams. 

Mr.  Hoyes. — Ho  one  seeks  such  rapid  changes,  nor  indeed, 
any  from  what  wTe  think  was  necessarily  and  properly  decided 
there.  The  doctrines  of  that  case  and  those  we  now  contend 
for,  do  not  necessarily  come  in  conflict.  That  case  may  be  up- 
held in  England  and  here  without  the  Statutes  of  Elizabeth. 
This  cannot,  and  I leave  that  authority  to  be  allowed  such 
weight  as  it  may  be  entitled  to  and  close  my  consideration  of 
the  most  important  question  in  this  case. 

I maintain  however,  that  the  final  bequest  at  the  close  of  the 
codicil  of  October  15th,  1838,  is  also  void.  It  is  wholly  uncertain 
as  to  the  sum  bequeathed,  and  as  to  the  beneficiaries.  It  does  not 
appear  whether  the  societies  who  are  to  take  are  incorporated  or 
not.  If  the  latter,  then  it  is  void  within  the  ruling  in  Owensv.  Miss. 
Soc.  M.  E.  Ch .,  (1HA  JV.  Y.  R..  380),  because  unincorporated. 
Besides  this,  it  is  indefinite  and  uncertain  as  to  what  societies, 


89 


and  where  they  are  located ; and  there  is  no  mode  of  selection 
provided  for,  if  the  executors  refuse  to  act,  or  die  ; and  having 
renounced  they  cannot  make  the  selection.  I refer  again  to 
Attfy  Gent.  v.  Hickman , (2  W.  Kelynge  R.  4,  pi.  4 ; 2 Eg.  Gas. 
Abv.  193,  Title  “ Charity ,”  A pi:  14),  as  being  conclusive  on 
this  head  ; for  there  it  was  decided  that  if  the  party  to  whom 
the  discretion  was  confided,  died,  that  duty  could  not,  except 
under  the  Statute  43,  Elizabeth,  be  conferred  upon  another. 
Jarman  on  Wills , ( Perkins  Ed.  Vol . 1,  196)  contains  the 
principle  and  cites  some  authorities,  to  one  of  which  I will 
refer.  The  case  of  Williams  v.  Kershaw  (5  Cl.  d?  Fin.  Ill), 
where  it  was  held  that ; 

“ A direction  by  a testator  to  his  trustees  to  apply  the  residue 
of  his  personal  property  to  and  for  such  benevolent,  charitable, 
and  religious  purposes,  as  they  in  their  discretion  should  think 
most  advantageous  and  beneficial  and  for  no  other  use,  intent, 
or  purpose,1 

was  void  for  uncertainty.  Again,  the  amount  to  be  ap- 
propriated under  this  provision  depends  on,  and  is  to  be  ascer- 
tained by,  the  previous  application  of  a portion  of  the  estate, 
according  to  the  directions  of  the  first  codicil  to  the  establish- 
ment of  a dispensary  ; failing  which,  it  is  impossible  to  deter- 
mine the  amount  set  apart  to  general  charity  ; and  the  bequest 
necessarily  falls.  ( Chapman  v.  Brown , 6 Vesey , 404 ; Attfy 
Gen.  v.  Baviesyd  Id .,  535  ; Limbey  v.  Gurr , 6 Madd.  Ch.  R., 
151;  Attiy  Gen.  v.  Hinxman , 1 Jac.  c&  Walker,  270;  1 Jarman 
on  Wills , 205 ; Boyle  on  Charities , 78-82  ; Tudor  Char.  Trust 
Act , jo.  70,  § 70.) 

¥e  claim,  therefore,  that  the  Justice  at  Special  Term  erred 
in  supposing,  that  if  the  devise  and  bequests  for  the  dispensary 
failed,  the  funds  to  be  devoted  to  that  purpose  sunk  into  the 
residue  of  the  estate,  to  be  applied  under  the  last  codicil  to 
12 


90 


general  charity.  ( Boyle  on  Charities , 419-20 ; Gravenor  v. 
Hallum , Arribler  643  ; 1 Jarman  on  Wills , 206.)  Why,  the 
very  language  of  the  last  codicil  expressly  excludes  any  such 
inference.  It  says : 

“ In  the  second  place,  after  satisfying  the  provisions  of  my 
will  in  regard  to  the  dispensary  mentioned  in  my  will,  or  in  the 
first  codicil  thereto,  I give  and  bequeath  all  my  estate  then  re- 
maining, if  any  there  shall  be,”  &c., 

leaving  no  doubt  that  the  testator  did  not  intend  to  devote  to 
general  charitable  purposes  any  portion  of  his  estate,  except 
what  might  remain  after  the  dispensary  was  established  and 
funds  set  apart  for  its  perpetual  maintenance,  and  that  he  doubt- 
ed if  there  would  be  any.  Again,  it  was  a part  of  the  residue 
of  the  estate,  if  anything,  that  was  devised  and  bequeathed  to 
the  establishment  of  a dispensary  ; and  it  is  well  settled — 

“ that  a residue  never  includes  what  has  once  been  bequeathed 
as  a residue,  but  of  which  the  gift  fails.  * * * * 

A part  of  the  residue,  of  which  the  disposition  fails,  will  not 
accrue  in  augmentation  of  the  remaining  parts ; but  instead  of 
resuming  the  nature  of  residue,  devolves  as  indisposed  of.” 

I refer  to  Ward  on  Legacies  (32),  and  cases  there  cited.  (See 
also  Floyd  v.  Barker , 1 Paige  P.,  4S0-2  ; SkrymsJier  v.  Worth- 
cote,  1 Swanst  II.,  565;  Chiplyn  v.  Cresswell , 2 Eden  _Z?.,  123.) 

But  even  if  the  entire  estate  should  be  ascertained  as  directed 
at  Special  Term,  still  the  sums  to  be  applied  under  the  last 
codicil,  and  the  time  when  the  application  is  to  be  made,  are 
left  to  the  absolute  discretion  of  the  executors ; and  this  cannot 
be  exercised,  as  they  have  renounced.  Ho  individual  or  society 
has  a legal  interest  in  this  bequest,  or  could  compel  the  per- 
formance of  it  as  a trust  in  his  or  their  behalf.  It  has  been 
shown  that  in  such  cases  our  Court  of  Chancery  has  no  power 


91 


to  uphold  the  trust  ( Female  Ass^n  of  N.  Y.  v.  Beekman , 21 
Barb.  S.  C.  R 565),  and  I have  attempted  to  show,  and  hope 
I have  proved,  that  the  English  Chancery  had  not  the  power  to 
maintain  such  a trust  independently  of  the  Statute  of  Elizabeth. 

The  matters  which  I have  thus  far  discussed  having  occupied 
so  much  time,  I shall  not  trouble  the  Court  further  with  refer- 
ence to  the  remaining  propositions  contained  in  my  points  ; 
but,  grateful  for  its  indulgence  in  allowing  me  to  engross  so 
much  of  its  time,  and  for  the  attention  with  which  I have  been 
heard,  I respectfully  leave  the  interests  of  my  clients  in  its 
hands. 


9?, 


APPENDIX. 


LAST  WILL  OF  WILLIAM  BARTHROP,  DECEASED. 


“ In  the  name  of  God,  Amen  ! I,  William  Barthrop,  do 
make  this  my  last  will  and  testament,  in  manner  following : 

I give  and  devise  to  my  beloved  wife,  all  my  household  fur- 
niture, beds,  linen,  plate,  and  live  stock,  to  enjoy  the  same  dur- 
ing her  natural  life,  and  after  her  decease  to  go  to  my  nieces, 
daughters  of  my  sister  Mary,  equally. 

I further  give  and  devise  to  my  said  wife,  the  use  and  income 
of  my  dwelling-house,  situate  in  the  village  of  Kinderhook,  dur- 
ing her  natural  life,  and  lot  of  land  adjoining. 

I further  give  and  devise  to  my  said  wife,  the  sum  of  two 
hundred  dollars,  to  be  paid  to  her,  by  my  executors,  half-yearly, 
as  long  as  she  remains  my  widow  ; all  the  above  in  considera- 
tion of  her  relinquishing  any  right  of  dower  on  land  I may  die 
seized  of,  or  have  heretofore  released. 

I give  and  devise  to  my  sister  Mary  Bonsor,  of  ^Nottingham, 
in  England,  the  sum  of  five  hundred  dollars,  to  be  paid  to  her 
immediately  after  my  decease,  and  the  further  sum  of  one  hun- 
dred and  fifty  dollars  half-yearly  during  her  life. 

I give  and  devise  to  each  of  the  children  of  Henry  Bonsor 
and  Mary  his  wife,  my  nephews  and  nieces,  the  sum  of  one 
thousand  dollars,  who  are  living  at  the  time  of  my  decease. 

I give  and  devise  my  house  and  lot  in  the  town  of  Canaan,  to 
Jane,  daughter  of  Jack  and  Soute  Van  Dyck. 

I give  and  devise  to  the  daughters  of  the  late  Arent  Van 


94 


Yleck,  of  the  town  of  Kinderhook,  and  to  their  brother  William, 
respectively,  and  also  to  William  Yan  Yleck,  son  of  Henry  Yan 
Yleck,  of  Hudson,  to  each  one  hundred  dollars. 

I give  and  devise  to  Frances  Staats,  daughter  of  Daniel  Staats, 
of  the  town  of  Oswego,  one  hundred  dollars,  and  also  after  the 
death  of  her  mother,  all  the  household  furniture  I formerly 
bought  at  Sheriff’s  sale,  and  which  I have  since  that  time  al- 
lowed the  family  the  use  of. 

I give  and  devise  to  Affy  Clow,  to  Freelove  Yallet,  widow  of 
the  late  Steven  Yallet,  to  Maria  Knight,  Catharine  and  Alber- 
tine  Yan  Alstine,  daughters  of  the  late  Alexander  Yan  Alstine, 
of  Kinderhook,  and  Maria  Yan  Alen,  daughter  of  John  Yan 
Alen,  to  each  respectively  one  hundred  dollars. 

I give  and  devise  to  Phebe  and  Elizabeth  Yallet,  daughters 
of  the  late  Stephen  Yallet,  of  Kinderhook,  to  each  respectively 
two  hundred  dollars,  to  be  paid  to  them  as  they  attain  twenty- 
five  years,  and  the  interest  yearly  until  that  time  from  the  time 
of  my  decease. 

I give  and  devise  to  Jane  Yallet,  daughter  of  said  Stephen 
Yallet,  one  hundred  dollars,  to  be  paid  her  at  twenty-five  years, 
and  interest  yearly  as  above. 

All  the  residue  and  remainder  of  my  worldly  estate  and 
effects,  except  what  is  hereafter  excepted,  I give  and  devise  to 
the  society  in  Philadelphia,  and  to  the  Society  in  Hew  York,  for 
the  Relief  of  Tailoresses  and  Seampstresses,  to  the  Female  Assist- 
ance of  Hew  York,  to  the  Society  for  the  Relief  of  Respectable 
Aged  and  Indigent  Females  of  Hew  York. 

The  estate  and  effects  mentioned  is  money  on  interest,  the 
avails  of  lands  which  I do  hereby  authorize  my  executors  to  sell 
at  such  time  and  times  as  they  shall  think  proper,  and  also  the 
reversion  of  the  moneys  which  will  be  due  at  the  decease  of  my 
wife  and  sister.  And  if  any  doubt  shall  arise  as  to  the  true 
meaning  of  any  part  ot*  this  my  last  will,  I will  that  my  execu- 
tors, or  a majority  of  their  opinions,  be  considered  as  the  true 
and  correct  meaning  thereof. 

I constitute  and  appoint  David  Yan  Schaack,  Esq.,  and  Ten- 
nis Harder,  of  the  Yillage  of  Kinderhook,  and  Abraham  J.  Yan 
Alstine,  of  the  town  of  Stuyvesant,  executors  of  this  my  last 
will  and  testament,  and  I give  to  each  respectively  the  sum  of 


95 


two  hundred  dollars  after  they  have  duly  taken  upon  them- 
selves the  office  of  executors;  and  as  I wish  to  have  three  ex- 
ecutors, if  any  above  appointed  should  decline  acting,  I then 
constitute  and  appoint  Doctor  John  M.  Pruyn,  of  Kinderhook, 
with  the  same  legacy. 

It  is  further  my  will  that  the  Female  Hospital  Society,  and 
Provident  Society,  both  of  Philadelphia,  be  admitted  to  take 
an  equal  share  with  the  other  before-mentioned  benevolent  so- 
cieties; but  my  executors  shall  have  a discretionary  power  to 
withhold  from  any  one  or  more  and  give  their  share  to  the 
others;  should  they  be  satisfied  or  a majority  of  them  any  such 
society,  on  diligent  enquiry,  is  not  conducted  in  a suitable  man- 
ner, especially  in  a laxity  and  indifference  in  the  managers. 
Should  any  one  to  whom  bequests  have  been  made,  die  before 
the  time  of  payment,  or  minors,  I will  that  the  bequest  be  di- 
vided equally  among  the  legatees  of  the  same  family. 

I will  that  my  executors  take  eight  or  ten  years  in  collecting 
my  debts,  as  I would  not  have  persons  unnecessarily  hurried 
for  payments,  and  within  ten  years  pay  the  same  to  the  socie- 
ties aforesaid,  by  installments,  as  they  collect  the  same  ; and  I 
revoke  all  other  will  or  wills  heretofore  made. 

Witness  my  hand  and  seal,  October  9th,  1837. 

[l.  s.]  William  Barthrop. 

Signed,  sealed,  and  delivered  in  the  ] 
presence  of  us,  and  each  other,  J 

Augustus  Writing,  of  Kinderhook, 

Barent  Hoas,  of  Kinderhook. 


Codicil  to  the  last  will  and  testament  of  William 
Barthrop,  of  Kinderhook.  Will  dated  October 
9th,  1837. 

I hereby  revoke  that  part  of  my  'will  bequeathing  to  the  so- 
cieties in  Philadelphia  and  Hew  York  for  the  relief  of  Tailor- 
esses  and  Seampstresses,  and  also  the  Female  Assistance  Society, 
and  for  Aged  and  Indigent  Females — the  residue  and  remainder 


96 


of  my  worldly  goods  and  effects — and  in  lieu  thereof,  I give  and 
bequeath  to  the  Society  for  the  benefit  of  Tailoresses  and  Seamp- 
stresses  in  Philadelphia,  and  also  to  the  Society  for  the  benefit 
of  Tailoresses  and  Seampstresses  in  the  city  of  New  York,  or 
their  respective  managers  for  the  time  being,  to  eacli  respec- 
tively the  sum  of  $1,000  for  five  successive  years  ; my  execu- 
tors to  make  the  first  payment  within  one  year  after  my  death ; 
and  to  the  Female  Assistance  Society,  and  to  the  Society  for 
the  relief  of  Respectable  Aged  and  Indigent  Females,  and  to 
the  Female  Benevolent  Society,  all  of  the  city  of  New  York, 
the  sum  of  five  hundred  dollars  yearly,  to  each  society,  for  six 
successive  years,  to  begin  within  one  year  after  my  death. 

I will  that  my  executors  purchase  a farm  in  trust,  for  the 
benefit  of  my  nephews  and  nieces,  children  of  my  sister  Mary 
Bonsor,  of  Nottingham,  in  England,  not  exceeding  six  thousand 
dollars,  as  an  asylum ; and  ’tis  my  wish  they  come  and  occupy 
the  same,  especially  my  nephew  Henry  ; but  my  executors 
must  have  a full  power  over  the  same  for  fifteen  years,  for  the 
benefit  of  all  my  nephews  and  nieces,  as  they  think  fit,  and 
after  the  fifteen  years  is  expired,  they  may  sell  the  same,  and 
apportion  the  avails  among  them,  or  their  heirs  and  survivors, 
as  they  may  think  just;  and  if  any  of  my  nephews  and  nieces 
cavil  or  dispute  with  the  arrangements  my  executors  make  for 
their  mutual  benefit,  I will  that  they  receive  no  part  thereof. 

The  furniture  bequeathed  to  my  nieces  after  the  death  of  my 
wife,  or  to  their  heirs,  is  that  part  thereof  I brought  from  Eng- 
land, and  what  I have  purchased  since  our  marriage,  and  not 
any  linen,  woolen,  or  cotton  things  made  by  my  wife. 

I give  and  devise  to  my  wife  all  my  live  stock,  hay  and  grain, 
and  also  the  wood-lot  adjoining  the  water-ash  bridge  in  De 
Bruyn  Bight,  being  upwards  of  six  acres,  all  of  which  I say  is 
instead  of  dower. 

I hereby  revoke  the  nomination  of  executors,  and  their 
respective  legacies,  mentioned  in  my  will,  and  instead,  I make 
and  appoint  the  following  persons  as  executors,  being  near 
together,  that  is  to  say  : John  Bain,  and  Teunis  N.  Harder,  and 
David  Yan  Schaack.  To  the  two  former  I give  and  devise  the 
south  end  of  the  vlie  opposite  Alpheus  Webber’s  garden,  begin- 
ning on  the  Albany  road,  so  that  a straight  line  will  strike  the 


97 


middle  of  the  ditch,  running  directly  under  the  hill  easterly, 
until  it  strikes  the  land  of  Teunis  17.  Harder,  then  up  the  hill 
easterly  and  southerly,  by  lands  of  Teunis  H.  Harder,  until  it 
strikes  the  Albany  road  ; then  along  said  road  to  the  place  of 
beginning.  And  also,  if  any  of  my  executors  shall,  within  five 
year3  after  my  death,  choose  to  have  a family  vault,  they  can 
each  make  one  on  my  land  next  adjoining  the  east  end  of  the 
public  burying  ground,  the  same  size  as  is  general  in  Trinity 
and  St.  Paul’s  church-yards  or  burying  grounds  ; and  to  David 
Yan  Schaack,  I devise  the  sum  of  two  hundred  dollars ; but 
their  respective  legacies  is  upon  the  express  condition  that  they 
each  take  an  active  part  as  executors. 

After  the  expiration  of  ten  years,  or  sooner,  if  my  executors 
find  there  will  be  sufficient  funds,  I would  wish  a public  dis- 
pensary, as  in  Hew  York,  on  a similar  plan,  for  indigent  persons 
both  sick  and  lame,  to  be  attended  by  a physician  elected  to 
the  establishment,  at  their  own  homes,  and  also  daily  at  the 
dispensary.  My  executors  to  consult  judicious  men  in  Albany 
respecting  the  same,  and  funds  enough  to  carry  on  the  building 
and  yearly  expenses.  And  should  there  be  any  overplus,  my 
executors,  within  fifteen  years,  may  give  it  to  any  other  chari- 
table society  or  societies  for  relieving  the  confortless  and  indi- 
gent they  shall  select,  I say  within  fifteen  years  from  my 
death.  If  any  of  those  appointed  to  act  as  executors  should 
refuse  to  act,  then  I appoint  Doctor  John  Mathias  Pruyn,  with 
the  same  legacy.  I would  have  David  Yan  Schaack  to  keep 
my  securities  for  money  ; but  my  other  executors  must  each  be 
furnished  with  an  exact  copy  of  the  same  made  out  by  some 
suitable  person  ; for  which  service,  and  taking  of  statement  of 
debts,  that  is  to  say,  bonds,  mortgages,  notes,  judgments,  &c., 
he  must  be  paid  out  of  the  funds  of  my  estate,  as  also  must  all 
other  disbursements,  being  necessary  expenses  made  by  any  of 
my  executors,  for  the  furtherance  of  settling  my  affairs.  My 
executors  to  each  have  a statement  made  out  by  a suitable 
correct  person,  immediately  after  my  decease,  and  to  give  every 
debtor  plenty  of  time  to  pay  their  debts,  especially  where  the 
debts  are  secure.  I say  it  is  my  will  that  my  executors  have  a 
discretionary  power,  or  a majority  of  them,  within  fifteen  years 
after  my  decease,  to  pay  over  what  remains  after  all  legacies 
13 


98 


paid,  the  residue  and  remainder  of  moneys  arising  from  my 
worldly  goods  and  effects  to  such  charitable  societies  for  indi- 
gent and  respectable  persons,  especially  females  and  orphans, 
as  they  in  their  discretion  shall  think  of. 

As  I would  wish  to  have  three  executors,  if  any  mentioned 
should  die  or  decline  acting,  I would  appoint  and  nominate 
Abraham  J.  Yan  Alstyne,  of  Stuyvesant,  an  executor,  with  a 
legacy  of  two  hundred  dollars,  as  in  all  circumstances  I would 
like  that  the  majority  should  rule  ; and  in  case  of  any  other 
not  acting,  then  let  my  two  executors  elect  any  suitable  man 
to  make  the  third,  with  the  legacy  of  two  hundred  dollars;  but 
it  is  expected  they  will  take  an  active  part  in  their  delibera- 
tions and  arrangements. 

In  testimony  whereof,  I have  hereunto  set  my  hand  and  seal, 
this  12th  day  of  May,  1838. 

William  Barthrop.  [l.  s.] 

Signed  and  sealed  by  the  testator,  in 
our  presence  and  in  the  presence 
of  each  other. 

William  Yallet,  of  Kinderhook. 

David  Yallet,  of  Kinderkook. 


I,  William  Bartholf,  do  declare  and  publish  this  as  a codicil 
to  my  last  will  and  testament,  and  to  be  taken  as  part  thereof, 
as  follows  : 

First. — I give  and  bequeath  to  Doctor  John  M.  Pruyn  a cer- 
tain note  or  obligation  I hold  against  him  for  the  payment  of 
money,  and  order  my  executors  to  deliver  up  the  same  to  him. 

Item . — I also  give  and  bequeath  to  said  John  M.  Pruyn  the 
sum  of  one  hundred  dollars,  as  a compensation  for  his  medical 
services  for  attending  during  my  last  sickness. 

Item. — I order  and  direct  my  executors  named  in  my  said 


99 


will,  to  execute  and  deliver  to  Peter  T.  Yan  Alen  a deed  to 
convey  an  estate  in  fee  simple  for  the  house  and  lot  in  which 
he  now  lives  in  Kinderhook,  adjoining  the  lands  of  Alpheus 
Webber  and  Asahel  Fuller;  and  I also  release  and  discharge 
said  Yan  Alen  from  any  claim  I have  against  him,  whether  for 
the  balance  of  the  purchase  money  he  had  agreed  to  pay  me 
for  said  house  and  lot,  or  otherwise.  But  the  direction  and 
legaey  in  this  clause  is  made  and  given  upon  the  express  con- 
dition that  said  Peter  shall  yield  up,  cancel,  and  discharge  all 
claims  and  demands  against  me,  which  claims  and  demands  I 
do  hereby  declare  were  intended  as  part  payment  of  what  he 
owes  me. 

I give  and  devise  to  my  two  stepsons,  John  P.  Beekman  and 
Thomas  Beekman,  and  to  their  heirs  and  assigns  as  tenants  in 
common,  all  that  certain  lot  of  woodland,  which  I own,  situate 
in  the  town  of  Stuvvesant,  and  adjoining  lands  of  Isaac  Yan 
Alstyne,  which  lot  was  a part  of  the  estate  of  John  Yan  Als- 
tyne,  deceased.  1 do  hereby  revoke  all  such  parts  of  my  said 
will  as  are  inconsistent  with  this  codicil. 

In  witness  whereof,  I have  hereto  set  my  hand  and  seal,  the 
6th  day  October,  1838. 

Wm.  Barthrop.  [l.  s.] 

Signed,  sealed,  published,  and  declar. 
ed  by  the  testator,  as  a codicil  to 
his  last  will  and  testament,  in  our 
presence,  who  have  hereto  set  our 
names  as  witnesses  in  his  presence, 
and  in  the  presence  of  each  other, 
at  his  request. 

Peter  Yan  Schaack,  of  Kinderhook. 

Robt.  H.  Gray,  do. 

I,  William  Barthrop,  of  Kinderhook,  in  the  county  of  Colum- 
bia, do  make  and  publish  the  following  as  a further  codicil  to 
my  last  will  and  testament : 

First. — I give  and  bequeath  to  my  beloved  wife  Anna  Bar- 
throp, the  sum  of  ten  thousand  dollars  in  money  or  good  obli- 
gations, immediately  after  my  decease  to  be  paid  to  her,  and  I 


100 


gave  said  sum  to  her  instead  of  the  annuity  given  to  her  by  my 
will,  and  in  lieu  of  dower  in  my  estate. 

In  witness  whereof,  I have  hereunto  set  my  hand  and  seal, 
the  8th  day  of  October,  1838. 

Wm.  Barthorp.  [l.  s.] 


Signed,  sealed,  published,  and  declared  ' 
by  said  William  Barthorp,  as  a codi- 
cil to  his  last  will  and  testament,  in 
our  presence,  who  have  hereto,  at 
his  request,  and  in  his  presence,  and 
in  the  presence  of  each  other. 

Peter  Van  Schaack,  of  Kinderliook. 

Robert  EL  Gray,  do. 


I,  William  Barthorp,  of  Kinderliook,  in  the  county  of  Colum- 
bia, do  make,  and  publish,  and  declare  the  following  as  a further 
codicil  to  my  last  will  and  testament,  viz. : 

First. — I do  hereby  authorize  and  empower,  and  order  and 
direct  my  executors,  and  the  survivor  and  survivors  of  them,  to 
sell  all  my  real  estate,  (except  what  I have  in  my  will  or  in  any 
codicil  thereto  otherwise  disposed  of,)  and  if  two  of  my  executors 
to  whom  I have  devised  a portion  of  the  Vly  or  Vlye,  in  Kin- 
derhook,  shall  decline  acting  as  such  executors,  then  including 
that  portion  of  said  Vly  or  Vlye  also,  which  I also  authorize  my 
executors  to  sell,  and  upon  such  sales  being  made,  to  execute 
good  and  sufficient  deeds  in  the  law  to  convey  an  estate  in  fee 
simple  to  the  purchaser.  I also  authorize  my  executors  to  sell 
all  my  interest  and  share,  being  one  one-half  in  the  house,  out- 
houses and  lands  thereto  attached,  in  Kinderliook,  in  which  I 
now  reside,  but  subject  to  the  life  estate  of  my  wife,  to  whom  I 
have  devised  the  same  for*  her  life,  and  to  execute  a good  and 
sufficient  deed  in  the  law  to  the  purchaser  in  fee  simple,  subject 
as  aforesaid.  And  I declare  that  the  proceeds  of  the  sale  of  the 
real  estate  hereby  directed  to  be  sold,  shall  sink  in  and  be  con- 
sidered as  a part  of  my  residuary  estate. 

Item. — I do  hereby'revoke  the  legacies  given  in  my  will  and  in 


101 


the  codicil  thereto,  to  the  several  societies  in  New  York  city 
and  in  the  city  of  Philadelphia. 

Item. — As  to  the  rest  and  rest  and  residue  and  remainder  of 
my  estate,  including  the  capital  or  principal  sum  to  be  set  apart 
to  produce  the  annuity  to  my  sister  Mary,  as  mentioned  in  my 
will,  and  which  shall  remain  thereof  at  her  death,  and  after 
first  satisfying  the  several  legacies  and  bequests  and  provisions 
in  my  will,  and  any  of  the  codicils  thereto,  except  those  I have 
by  this  or  any  other  codicil  revoked.  I dispose  thereof  before 
any  money  is  appropriated  for  the  establishment  of  a dispensary, 
as  provided  for  in  one  of  the  codicils  to  my  will,  as  follows,  that 
is  to  say : 

I give  and  bequeath  thereout,  in  the  first  place,  to  my  ex- 
ecutors and  to  the  survivor  and  survivors  of  them,  the  sum  of 
.nineteen  thousand  dollars  upon  trust — that  they  shall  and  may 
pay  thereout,  if  in  their  judgment  they  shall  be  of  the  opinion, 
after  due  enquiry  and  examination  and  deliberation,  that  the 
following  societies  are  well  managed  and  conducted,  and  their 
funds  faithfully  applied  to  the  objects  for  which  they  are  estab- 
lished or  incorporated,  the  following  sums,  viz  : — To  the  person 
or  persons  having  the  management  of  the  pecuniary  affairs  of 
those  societies,  and  for  the  benefit  of  these  societies,  viz  : — The 
Society  for  the  benefit  of  Tailoresses  and  Seampstresses  in  the 
city  of  Philadelphia,  and  the  Society  for  the  benefit  of  Tailor- 
esses and  Seampstresses  in  the  city  of  New  York,  each  the  sum 
of  one  thousand  dollars  annually,  for  five  successive  years  after 
my  death ; the  first  payment  to  be  made  at  the  expiration  of 
one  year  after  my  death,  and  the  residue  in  four  equal  annual 
payments  thereafter.  The  Female  Assistance  Society,  and  the 
Society  for  the  Relief  of  Respectable  Aged  and  Indigent  Fe- 
males, and  the  Female  Benevolent  Society,  all  of  the  city  of 
New  York,  each  the  sum  of  five  hundred  dollars  annually,  for 
six  successive  years  after  my  death— the  first  payment  to  be 
made  at  the  expiration  of  one  year  after  my  death,  and  the  resi- 
due in  five  equal  annual  payments  thereafter.  But  should  my 
executors  be  of  the  opinion,  at  any  time,  that  any,  or  either  of 
said  societies,  do  not  merit  the  provisions  aforesaid  for  their  be- 
nefit, by  reason  of  mismanagement  or  negligence,  or  for  any 


102 


other  cause,  then,  and  in  that  case,  it  is  my  will,  and  I direct 
that  the  moneys  then  remaining  unpaid,  shall  be  withheld,  and 
they  pay  and  apply  the  same  to  any  other  charitable  society  or 
societies,  incorporated  or  not,  which  my  said  executors  shall,  in 
their  discretion,  think  proper ; reposing  full  confidence  in  my 
executors,  that  they  will  endeavor  to  carry  into  effect  my  inten- 
tions in  regard  to  the  disposition  of  said  moneys ; and  it  is  also 
my  will  that  my  said  executors  shall,  and  do  hereby  authorize 
them  to  retain  out  of  my  estate  all  the  expenses  they  shall  incur, 
and  a reasonable  compensation  for  time  spent  for  the  purpose, 
and  from  time  to  time  acquiring  correct  information,  in  order 
to  carry  into  effect  my  intentions  expressed  in  this  clause  of  my 
will. 

And  in  the  second  place,  also,  satisfying  the  provisions  in  my 
will  in  regard  to  the  dispensary  mentioned  in  my  will,  or  the 
first  codicil  thereto. 

I give  and  bequeath  all  my  estate  then  remaining,  if  any  there 
shall  be,  to  my  executors  in  trust,  that  they  shall  and  may  ap- 
ply the  same  in  such  sums  and  at  such  time  and  times  as  in 
their  discretion  they  shall  think  fit  and  proper,  to  the  treasurer, 
or  other  officer  having  the  management  of  the  pecuniary  affairs 
of  any  one  or  more  societies  for  the  support  of  indigent  respect- 
able persons,  especially  females  and  orphans,  and  for  the  use  of 
said  society  or  societies,  hereby  intending  to  give  to  my  execu- 
tors discretionary  power  as  to  the  disposition  of  the  same,  but 
so  that  the  same  shall  be  applied  to  objects  of  charity. 

In  witness  whereof,  I have  hereto  set  my  hand  and  seal  this 
15th  day  of  October,  1838. 

William  Bakthrop.  [l.  s.] 
Signed,  sealed,  subscribed,  and  deliv-  j 
ered  by  the  testator,  as  and  for  a 
codicil  to  his  last  will  and  testament, 
in  our  presence,  who  have  hereto 
set  our  names  as  witnesses,  in  his  S 
presence,  and  at  his  request,  and 
presence  of  each  other,  the  words 
“subject  as  aforesaid,”  interlined,  j 

Peter  Yan  Schaacii,  Kinderhook. 

.Robert  II.  Gray,  do. 


